00001
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - HUDSON COUNTY
2 DOCKET NO. HUD-L-3520-04
PETER deVRIES and TIMOTHY
3 CARTER
TRANSCRIPT
4 OF PROCEEDING
Plaintiffs,
5 TRIAL DAY 8
Vs.
6
THE TOWN OF SECAUCUS,
7 Defendant.
- - - - - - - - - - - - - - - -
8
HUDSON COUNTY COURTHOUSE
9 595 Newark Avenue
Jersey City, New Jersey 07306
10 Wednesday, May 21, 2008
Commencing 9:40 a.m.
11
B E F O R E:
12 HONORABLE BARBARA A. CURRAN
13 TRACEY R. SZCZUBELEK, CSR
LICENSE NO. XIO1983
14
15
16
17
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20 SCHULMAN, WIEGMANN & ASSOCIATES
21 CERTIFIED SHORTHAND REPORTERS
22 216 STELTON ROAD
23 SUITE C-1
24 PISCATAWAY, NEW JERSEY 08854
25 (732) - 752 - 7800
00002
1 A P P E A R A N C E S:
2
3 SMITH MULLIN, ESQS.
4 Attorneys for the Plaintiffs
5 240 Claremont Avenue
6 Montclair, New Jersey 07042
7 BY: NEIL MULLIN, ESQ.
8 NANCY ERIKA SMITH, ESQ.
9
10 PIRO, ZINNA, CIFELLI, PARIS & GENITEMPO, ESQS.
11 Attorneys for the Defendants
12 360 Passaic Avenue
13 Nutley, New Jersey 07110
14 BY: DANIEL R. BEVERE, ESQ.
15 DAVID M. PARIS, ESQ.
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20
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24
25
00003
1 I N D E X
2 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
3 DIRE
4 RICHARD JOHNSON
5 By: Mr. Mullin 29 95
6 By: Mr. Bevere 83
7
8 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
9 DIRE
10 DANIEL SNYDER
11 By: Mr. Mullin 126 167
12 By: Mr. Bevere 155
13
14 WITNESS DIRECT VOIR CROSS REDIRECT RECROSS
15 DIRE
16 MATTHEW KICKEY
17 By: Mr. Mullin 172 203, 215
18 By: Mr. Bevere 185 212
19
20
21 E X H I B I T S
22 NUMBER DESCRIPTION PAGE
23 (No exhibits marked.)
24
25
00004
1 JUDGE CURRAN: Go on the record.
2 COURT CLERK: On the record.
3 JUDGE CURRAN: Back on the record
4 in the matter of deVries and Carter versus
5 Secaucus. I will note that the jury is not
6 present. All counsel are.
7 May I have --
8 MR. MULLIN: Want appearances
9 first, Your Honor?
10 JUDGE CURRAN: Sure.
11 MR. MULLIN: Good morning, Your
12 Honor. Neil Mullin, Nancy Erika Smith for the
13 plaintiffs.
14 JUDGE CURRAN: Good morning.
15 MR. BEVERE: Good morning. Daniel
16 Bevere and Dave Paris, Piro, Zinna, Cifelli,
17 Paris & Genitempo on behalf of the Town of
18 Secaucus.
19 JUDGE CURRAN: Good morning.
20 MR. MULLIN: Your Honor, I would
21 like an in limine instruction that none of the
22 witnesses for the Town or witnesses employed by
23 the Town or in the Town Fire Department that I
24 call or any other persons called to testify here
25 relate to us whether they have gay members in
00005
1 their family or gay friends. Yesterday --
2 JUDGE CURRAN: I'm sorry?
3 MR. MULLIN: Whether they have --
4 JUDGE CURRAN: What verb did you
5 use? "Relate"?
6 MR. MULLIN: Tell the jury. I
7 don't want them to testify --
8 JUDGE CURRAN: This is in the
9 future?
10 MR. MULLIN: In the future going
11 forward.
12 JUDGE CURRAN: I just wanted to
13 make sure I understood the verb.
14 MR. MULLIN: I don't want anybody
15 testifying about their gay friends, their gay
16 relatives, their gay aunts and uncles. That
17 certainly wasn't mentioned in discovery or
18 listed in the defense as part of discovery.
19 It's highly inflammatory and has absolutely
20 nothing to do with this case for many, many
21 different reasons.
22 Number one, as Your Honor noted
23 on the record yesterday, I don't have a burden
24 of proving a specific intent on behalf of those
25 who were charged with doing something about what
00006
1 these firemen did. That's number one.
2 Number two, even if someone --
3 even if we look at the core group that were
4 homophobic that did attack, the fact that they
5 have a gay relative tells us nothing at all
6 about whether or not they -- they used a --
7 homophobic expletives that night or tried to
8 attack people because they were gay because we
9 don't know what they think of those gay
10 relatives, whether they have rejected those gay
11 relatives, showered them with abuse. We don't
12 know anything about it. There has been no
13 discovery on it, so it's probative of nothing.
14 But it is highly inflammatory
15 and -- and designed by -- if a witness does
16 that, certainly it's designed by the witness,
17 perhaps, to manipulate the jury emotionally and
18 mislead them, misdirect them. And so under Rule
19 403 and the rules governing relevance I ask that
20 no references of that nature be made whatsoever
21 as -- that's all I have to say.
22 JUDGE CURRAN: Mr. Bevere or
23 Mr. Paris?
24 MR. BEVERE: Judge, number one, I
25 have to disagree with Mr. Mullin's assertion
00007
1 that the issue did not come up in discovery.
2 Captain Buckley was asked by Kelly Smith of
3 their office if he was gay, and he said no.
4 Kelly Smith asked Detective DeGennaro if he knew
5 anyone who was gay. Detective DeGennaro said,
6 "My best friend, Robert Mansfield, is gay."
7 That was their questioning. It was not my
8 questioning. That's number one. So the issue
9 did come up in discovery.
10 Number two, with regard to this
11 issue of specific intent, there is absolutely an
12 issue in this case as to whether or not Secaucus
13 personnel who were responsible for either first
14 response, investigative response, Town
15 government were motivated in part by some animus
16 towards gay people. That's part of the claim in
17 this case. That's what was -- that was what we
18 discussed through our long and lengthy
19 questionnaire during jury selection. It was --
20 reference was made to it in opening statement.
21 It's part of the complaint that
22 their plaintiffs were discriminated against
23 because they were gay. And the fact that a
24 person who was accused, even though the Town is
25 the one being accused, but the Town can only act
00008
1 through the individual actors. And to the
2 extent that the plaintiffs are going to accuse
3 people of the Town of not doing things, failing
4 to do things or taking certain actions because
5 their clients were gay, then it becomes
6 relevant.
7 That having been said, it was not
8 my intention to ask any witness in the case
9 whether or not they had a gay relative.
10 However, I do need to ask the question of the
11 witnesses as to whether or not anything that
12 they did do or failed to do that the plaintiffs
13 are saying they should have done was in any way
14 motivated by the fact that the plaintiffs were
15 gay because that's a claim in this case. And we
16 can't get around that.
17 And I disagree with the specific
18 intent thing because if you look at the color of
19 law, what we have to have is a government actor
20 acting with either specific intent to cause a
21 result or reckless indifference to cause a
22 result. That's the first inquiry. And from
23 there we get to did a municipal custom, practice
24 or policy cause the government actor to act in
25 that manner? That's my understanding of Monell.
00009
1 And you have to have a government actor who is
2 acting with intent first; and then you get to,
3 well, can the municipality be held responsible
4 for what was done or what wasn't done?
5 JUDGE CURRAN: Mr. Bevere,
6 partially I agree with you. And this is, I
7 think, the problem of arguing issues like this
8 at sidebar, which we did yesterday, which we had
9 to. I'm not criticizing anyone for objecting.
10 Intent is certainly one thing.
11 Deliberate indifference is another. We will
12 argue that at -- at the end. What I was trying
13 to indicate yesterday was -- and I think I used
14 the term they don't have to establish mens rea,
15 they don't have to establish an evil intent. If
16 it was -- so that was just to clarify what I
17 said yesterday, if I didn't make that clear
18 yesterday.
19 I think, frankly, we're better
20 off to try to limit these discussions at this
21 point to what we have before us at this point.
22 Right now what we have -- first of all -- and
23 you have every right to make a motion or -- or
24 to ask for something else.
25 What we've got right now is an in
00010
1 limine motion that does not seek to suppress the
2 questions that you may feel you want to ask.
3 What it does is it is seeking, if I understand
4 it, to limit any answers so that there is no
5 indication in the answer, whatever the
6 questioning, you know, to an individual having a
7 friend or relative who is gay.
8 Is that the intention of the
9 motion?
10 MR. MULLIN: Yes, Your Honor. Of
11 course, I don't want an answer -- Mr. Bevere has
12 said he didn't intend at all to elicit the
13 response yesterday. We will take him at his
14 word.
15 MR. BEVERE: Quite frankly, Judge,
16 I was --
17 MR. MULLIN: So doesn't seem to
18 be the issue.
19 JUDGE CURRAN: No.
20 MR. MULLIN: I think you hit the
21 nail on the head. I just don't want a witness
22 to blurt out nonresponsive, "Look, my uncle" --
23 "my cousin four times removed is gay" because
24 then it's highly inflammatory, it's irrelevant.
25 I can respond to those legal arguments, if you'd
00011
1 like; but I gather we don't need to do that now.
2 JUDGE CURRAN: I don't think we
3 need to do that right now. And my concern is if
4 we keep --
5 MR. MULLIN: Just wanted to
6 instruct the witness not to blurt these things
7 out.
8 JUDGE CURRAN: If we do it
9 piecemeal --
10 MR. BEVERE: Judge, if I could
11 just -- because, number one, the question was
12 asked in discovery. And I don't see why it
13 would have been asked, if it didn't have some
14 relevance in the case. But I understand we are
15 here at trial now.
16 JUDGE CURRAN: Okay. Let me
17 interrupt you, just so we stick on the -- is
18 Captain Buckley or Mr. DeGennaro going to
19 be testifying?
20 MR. BEVERE: They are going to
21 be testifying. For the record, Captain Buckley
22 was asked the question. He said no.
23 JUDGE CURRAN: Okay.
24 MR. BEVERE: Detective DeGennaro
25 was asked the question; and he said yes, that
00012
1 his best friend, Robert Mansfield, was gay. But
2 Judge, part of the claim in this case was that
3 Secaucus, the Town of Secaucus failed to do
4 certain things or did certain things to the
5 plaintiffs because they were gay. And I think
6 it's a relevant --
7 JUDGE CURRAN: Absolutely.
8 MR. BEVERE: -- part of the
9 analysis.
10 JUDGE CURRAN: Absolutely. But
11 frankly, unless it was explored, not just maybe
12 asked, but explored in the depositions, the fact
13 that an individual may know someone who is gay,
14 may have a neighbor who is gay, may have a
15 relative or friend who is gay is really not
16 relevant. It's certainly not dispositive. We
17 have -- because it was not explored in
18 depositions. And maybe then it would have
19 been -- people would have been -- come on in.
20 (Whereupon, a juror enters the
21 courtroom.)
22 JUDGE CURRAN: Good morning.
23 JUROR: Good morning.
24 MS. HAWKS: All ten are here.
25 JUDGE CURRAN: Thank you. I
00013
1 always like to say hello to the last few. They
2 come in with their heads down, looking so
3 guilty. You want to say hello, all is well.
4 If you can give me an argument
5 that says it is relevant, that's what the issue
6 is right now. This is a very narrow motion, as
7 I understand it, just in regard to anyone who is
8 going to testify being asked and/or, use the
9 term, blurting out an association, if you will,
10 with someone who is gay.
11 MR. BEVERE: Judge, my argument as
12 to relevance is very simply, that part of the
13 claim in this case is that people were motivated
14 by antigay animus. And I think if someone has a
15 best friend who is gay, I think it speaks to
16 whether or not that particular detective would
17 have antigay animus. That's an element of this
18 case. It's been in this case from the
19 beginning.
20 JUDGE CURRAN: As to that
21 response, Mr. Mullin.
22 MR. MULLIN: Yeah, there was a --
23 what I'm calling is antigay homophobic mob that
24 attacked the house. And that's one issue. And
25 then there were all these reactions or
00014
1 non-reactions by the Town to it. There was what
2 I call "deliberate indifference" to it.
3 Deliberate indifference doesn't require me to
4 prove a specific intent to discriminate because
5 one's gay.
6 The Town fathers and mothers can
7 look out at -- at this mob and they can fail to
8 take action to protect my clients from it going
9 forward or even before or they cannot. They can
10 be deliberately indifferent to this homophobic
11 mob living next door to my clients or they
12 cannot. But I don't have to prove, in order to
13 show deliberate indifference, that this complete
14 failing of the Town to protect my clients was
15 motivated by the same motivations that motivated
16 the mob. I don't have to do that. The law
17 doesn't require that.
18 I can even go a step further.
19 Although Your Honor hasn't allowed this case to
20 proceed under the LAD, certainly we can agree
21 that the jurisprudence of the LAD covers
22 discrimination cases under the Constitution.
23 The LAD is the enactment, the legislative
24 enactment of the Constitution.
25 If you read the seminal case,
00015
1 Lehmann v. Toys R Us, said the LAD is not an
2 intent-based statute. I'm quoting. Meaning
3 that under the LAD one doesn't have to prove
4 specifically what's going on in individual's
5 mind. One looks at what that person does and
6 says.
7 The sexual harasser in the
8 workplace might be a friendly fellow without
9 evil motive. He might say something awfully
10 crude to -- to a young woman, for example,
11 and -- and be found liable under the LAD for
12 sexual harassment, even though in his heart of
13 hearts he didn't intend to hurt. That's what
14 the LAD is.
15 The LAD, we don't have to get
16 inside an individual's head and say -- and prove
17 what they were thinking at the instant they
18 uttered the awful things or did the awful
19 things.
20 The jury is instructed to look at
21 the actions of the people and see if the actions
22 created a hostile environment. And -- and the
23 jury can infer intent from what -- what people
24 did. So -- so what -- what would it prove?
25 Now we have DeGennaro and
00016
1 Buckley. And Buckley is not gay. But in any
2 event, we have DeGennaro saying he has some
3 friend named Mansfield, who we haven't
4 subpoenaed and who we haven't deposed, who is
5 his friend and he is gay. What does that prove?
6 What do I have to prove about DeGennaro? Do I
7 have to prove that DeGennaro harbors a specific
8 homophobic intent? No, I don't.
9 What -- the actions and inactions
10 of all the Town actors are circumstantial
11 evidence that I'm going to rely on to show Your
12 Honor that the whole Town had a policy of
13 deliberate indifference towards these firemen
14 and what they did. They had a -- there was --
15 there was a blanket top to bottom policy of
16 letting these firemen get away with this, this
17 attack and this type of behavior.
18 And I -- I'm not going to try to
19 prove that DeGennaro had a specific homophobic
20 intent. It's not in this case. It's not my
21 burden. And even if it were, what on earth
22 would the fact that he had a friend named
23 Mansfield who was gay prove about whether or not
24 he did something homophobic that night or during
25 those weeks or during those months?
00017
1 So if it's remotely relevant,
2 it's highly prejudicial under Rule 403.
3 JUDGE CURRAN: That's my concern.
4 MR. MULLIN: That's my point Your
5 Honor.
6 JUDGE CURRAN: Mr. Bevere.
7 MR. BEVERE: Judge, I hope that I
8 do not at this point have to go back and reargue
9 the LAD motion. I mean, really, I would hope
10 that at this point in the trial we are past
11 that. Your Honor --
12 JUDGE CURRAN: Right or wrong, the
13 Appellate Division --
14 MR. BEVERE: Yes.
15 JUDGE CURRAN: -- will say --
16 MR. BEVERE: Thank you.
17 JUDGE CURRAN: -- Judge "Curran,
18 that was the dumbest thing you ever did."
19 MR. BEVERE: Okay. So let's talk
20 about Monell because, certainly, when you're
21 dealing in a Monell situation, all right, my
22 understanding of Monell is that the Town, a
23 government employee does something with intent
24 or with extreme recklessness of -- of causing or
25 extreme recklessness -- reckless disregard of
00018
1 the result caused. Okay. That's the first
2 inquiry.
3 Then the second inquiry becomes
4 and the deliberate indifference comes in play
5 only with regard to Town policymakers and were
6 the Town policymakers deliberately indifferent
7 to the fact that a Constitution -- a deprivation
8 of someone's Constitutional rights by their
9 employees was substantially likely, almost a
10 certainty, to occur if they failed to take
11 certain action, whatever that action may be.
12 But the very first -- in other
13 words, the Town -- in order to say, "Detective
14 DeGennaro, you purposefully didn't investigate
15 this incident because you had some animus
16 towards the plaintiffs," that's part of the
17 claim. Whether or not he has a gay friend
18 speaks to that animus. The Town then would be
19 liable, theoretically, for Detective DeGennaro's
20 alleged malfeasance, if they had a policy,
21 practice and procedure that caused Detective
22 DeGennaro to act in that manner.
23 We're painting with a broad brush
24 here, but everything starts -- everything starts
25 with the employees who are actually alleged to
00019
1 have done the things that violated
2 Constitutional rights.
3 And then you get to deliberate
4 indifference with regard to the Town
5 policymakers. That's how you get there. And
6 quite frankly, if Detective DeGennaro has a best
7 friend who is gay, I think that that certainly
8 is relevant evidence as to whether it counters
9 any antigay or bias motive he may have had,
10 himself, in the manner in which he investigated
11 this incident. And that's -- that is why I
12 believe that the evidence is relevant.
13 That having been said, Your
14 Honor, it was not my intention to ask any of my
15 Secaucus witnesses if they had gay relatives.
16 But you know, I -- so, you know --
17 JUDGE CURRAN: Mr. Bevere, as I
18 see the issues here, I can agree with you in
19 part. However, as I see this case under
20 deliberate indifference, certainly whether or
21 not any of the individuals on the witness list,
22 to be as general as I can, whether they wind up
23 testifying or not, had an animus toward
24 individuals who were gay is probably part of the
25 allegations. However, that is not the starting
00020
1 off point or the threshold point.
2 For example, as I see this, any
3 of the individuals on the witness list -- and I
4 really don't want to go into any individual
5 names because I -- I don't want to prejudge any
6 issues that may come up or -- or say anything
7 that is not as neutral as I can make it. But
8 any of the individuals, as I understand this
9 case, on the witness list could have either
10 omitted to do something or could have done
11 something not proper by way of investigating,
12 lack of investigating, whatever, for other
13 reasons, not because they had any animus toward
14 individuals who were gay.
15 For example, the easiest possible
16 example would be they didn't want to get on the
17 Mayor's bad side or they wanted to get onto his
18 good side. They didn't want to get onto the
19 battalion chief's bad side or they wanted to get
20 onto his good attitude, whatever.
21 There are a lot of factors that
22 go into the issues here. Certainly, animus
23 toward someone who is gay would be a factor.
24 MR. BEVERE: That is my only
25 point, Judge.
00021
1 JUDGE CURRAN: I understand that.
2 MR. BEVERE: Because one of the
3 allegations in this case has always been, has
4 always been that people working for the Town
5 government of Secaucus had an antigay motive or
6 animus, however you want to term it. That's
7 always been an element of the claim.
8 JUDGE CURRAN: Absolutely. And I
9 grant you that. But my concern is in regard to
10 relevance and prejudicial value that any
11 indication -- and we're just going in the
12 future. We're not striking anything from
13 yesterday. Anything in the future that talks
14 about, no, I have -- my best friend is gay or I
15 have a relative who is gay or whatever, be it
16 from a witness or counsel, is simply too
17 inflammatory. It is simply -- it is simply
18 unduly prejudicial. And I find, therefore, that
19 it outweighs any relevance.
20 I will note your strong objection
21 to that.
22 MR. BEVERE: Thank you, Your
23 Honor.
24 JUDGE CURRAN: On the record. I
25 will also note you have indicated you did not
00022
1 intend to ask or to solicit that information.
2 And I found yesterday at sidebar that the
3 information put on the record yesterday by
4 Officer Amodeo was not -- the question was not
5 aimed at soliciting that information.
6 MR. BEVERE: Thank you, Your
7 Honor, because it certainly was not.
8 JUDGE CURRAN: Frankly, I saw your
9 face and his face yesterday; and your face was
10 as surprised as Mr. Mullin's was.
11 MR. BEVERE: Thank you, Judge.
12 JUDGE CURRAN: However, I am going
13 to ask that you do instruct your witnesses, no
14 matter for whom they appear, not to offer that,
15 not to comment on that.
16 Now, frankly, as far as it being
17 asked, we only have Officer DeGennaro; but
18 that's not my whole concern. My whole concern
19 is if you would be kind enough, please --
20 MR. BEVERE: I will be guided by
21 Your Honor's instructions, and I will be happy
22 to alert all the witnesses --
23 JUDGE CURRAN: Thank you.
24 MR. BEVERE: -- that if they
25 happen to have a gay relative or a gay friend,
00023
1 they are not to mention it --
2 JUDGE CURRAN: Thank you.
3 MR. BEVERE: -- on the witness
4 stand.
5 JUDGE CURRAN: Are there any
6 stipulations that you wish to put on the record?
7 MR. BEVERE: And I -- I assume
8 that counsel for the plaintiffs will -- will
9 stay away from the issue, as well?
10 JUDGE CURRAN: Absolutely.
11 MR. BEVERE: Okay.
12 JUDGE CURRAN: Absolutely, one
13 lives and dies by one's motions in limine.
14 MR. BEVERE: Well, let's not go
15 all the way there yet, Judge.
16 JUDGE CURRAN: Okay.
17 MR. MULLIN: We're working with
18 the Town on the stipulation concerning when the
19 firemen in the North End Firehouse were promoted
20 and -- and whatnot. And it's not complete yet.
21 And I don't fault counsel for that. I know they
22 are working with it I need to sit down and talk
23 to them. I need all the firemen who were
24 present that day. I need to not only know when
25 they were -- it's a step in the right direction.
00024
1 I need to know when they were promoted inside
2 the DPW, but I also need a column showing the
3 positions they held in the Fire Department. So
4 it would be --
5 MR. PARIS: Let me just make
6 clear, Mr. Mullin, what you have are the firemen
7 who work for the DPW and their positions.
8 MR. BEVERE: That's what we
9 provided, the firemen --
10 MR. PARIS: You want their titles
11 within the Fire Department?
12 MR. MULLIN: You are also going to
13 give me the firefighter positions all the
14 firemen have held from this incident going
15 forward.
16 MR. BEVERE: Judge, I could do it
17 right now.
18 MR. MULLIN: Well, fine.
19 MR. PARIS: They're on record.
20 MR. MULLIN: You can tell us like
21 what positions the firemen, whether they were
22 lieutenants or captains and when they -- when
23 they were promoted?
24 MR. PARIS: You are talking about
25 Company 2, not --
00025
1 MR. MULLIN: Yeah.
2 JUDGE CURRAN: Just -- yes.
3 Do you want to do that now, or do
4 you want to do it later?
5 MR. MULLIN: And these are the
6 only firemen that worked at DPW --
7 MR. PARIS: Exactly.
8 MR. MULLIN: -- or any Town
9 departments.
10 MR. BEVERE: These are the only
11 firemen that worked at DPW.
12 MR. MULLIN: What about the Town?
13 MR. BEVERE: I said, "DPW" because
14 that's the only place they work --
15 MR. MULLIN: So I can read --
16 MR. BEVERE: -- of members of
17 Engine Company Number 2. I could tell you that
18 fire -- former Fire Chief Ray Cieciuch is a Town
19 employee, as well; but he wasn't a member of
20 Engine Company Number 2.
21 MR. MULLIN: Okay. That's okay.
22 MR. BEVERE: I was asked about
23 Engine Company Number 2.
24 MR. MULLIN: Well, I would like --
25 MR. BEVERE: And also, Judge, I
00026
1 mean, I think we have already established for
2 the record that Charles Snyder, Jr. was a
3 dispatcher for the police; but we already -- we
4 have -- that file is in the record, and I think
5 we already had questioning on that.
6 JUDGE CURRAN: Even I could put
7 that on the record.
8 MR. MULLIN: All right. So okay.
9 So you want to start putting this stipulation on
10 the record?
11 MR. BEVERE: I could tell you that
12 based upon --
13 JUDGE CURRAN: Could I suggest
14 something? Why don't we do this in an orderly
15 manner.
16 MR. BEVERE: That's fine.
17 JUDGE CURRAN: We have all the
18 jurors here, and if you don't mind -- I brought
19 up stipulations in case you want to put on. We
20 don't need to do it now.
21 MR. BEVERE: That's fine. Before
22 the end of the day I will --
23 JUDGE CURRAN: Sure.
24 MR. BEVERE: -- have the positions
25 of the firefighters, the officers of the -- the
00027
1 officers of the company to -- April 2004 to the
2 present time.
3 JUDGE CURRAN: Thank you. I
4 appreciate that.
5 MR. BEVERE: I will have that
6 information.
7 JUDGE CURRAN: Thank you. And
8 then we'll let Mr. Mullin live up to the comment
9 he made when he talked about whether or not the
10 Town fathers and then he said, "or the Town
11 mothers." Now, I haven't heard any Town
12 mothers' names in this case.
13 MS. SMITH: There are none.
14 MR. MULLIN: I was trying to
15 be politically correct.
16 MR. BEVERE: There have been
17 though, Judge.
18 JUDGE CURRAN: There have been?
19 MR. BEVERE: There have been.
20 JUDGE CURRAN: Okay, good.
21 We will bring out the jury, if
22 there is objection. Who is the first witness?
23 MR. MULLIN: We have Mr. Johnson.
24 JUDGE CURRAN: Is he here?
25 MR. BEVERE: Who do you want
00028
1 first? You want Johnson first?
2 MR. MULLIN: Yeah, we will do
3 Johnson first.
4 MR. BEVERE: You know what --
5 JUDGE CURRAN: We will go off the
6 record for a moment.
7 (Whereupon, a discussion is held
8 off the record.)
9 MS. HAWKS: Jurors are
10 approaching.
11 JUDGE CURRAN: That's okay. We
12 will go off the record.
13 (Whereupon, a discussion is held
14 off the record.)
15 JUDGE CURRAN: Sir, if you would
16 like to take the witness stand. We can bring
17 the lawyers out -- the jurors out.
18 MS. HAWKS: Okay. Jurors are
19 approaching.
20 JUDGE CURRAN: Thank you.
21 MS. HAWKS: You're welcome.
22 (Whereupon, the jury is brought
23 into the courtroom.)
24 MS. HAWKS: Raise your right hand,
25 sir. Place your left hand on the Bible.
00029
1 R I C H A R D M. J O H N S O N, is duly sworn
2 by a Notary Public of the State of New
3 Jersey and testifies under oath as follows:
4 MS. HAWKS: For the record please
5 state your full name and spell your last name,
6 please.
7 THE WITNESS: Richard Michael
8 Johnson, J-o-h-n-s-o-n.
9 MS. HAWKS: Thank you.
10 JUDGE CURRAN: Thank you, sir.
11 Please be seated. Please move a little closer
12 to the microphone. You're under oath. All your
13 testimony must be truthful and accurate to the
14 best of your ability. Do you understand?
15 THE WITNESS: Yes.
16 JUDGE CURRAN: Thank you. Please
17 give us your rank and address.
18 THE WITNESS: 714 9th Street
19 Secaucus. And my rank for the Fire Department?
20 JUDGE CURRAN: Yes, sir.
21 THE WITNESS: As now it's captain.
22 JUDGE CURRAN: Thank you.
23 Your witness.
24 DIRECT EXAMINATION BY MR. MULLIN:
25 Q Mr. Johnson. It's Richard
00030
1 Johnson, right?
2 A Yes.
3 Q You've been a firefighter for the
4 Town of Secaucus since -- is it 1987?
5 A Correct.
6 Q And also, you'd been employed by
7 the Department of Public Works at the Town of
8 Secaucus since, was it, '89?
9 A Correct.
10 Q And have you worked continuously
11 since '89 until this present moment --
12 A Yes.
13 Q -- at the Department of Public
14 Works?
15 A Yes.
16 Q And what is your current title at
17 the Secaucus Department of Public Works?
18 A Driver/laborer.
19 Q Driver/laborer. Now, during the
20 time you worked at the Department of Public
21 Works have you known a Charles Snyder, Sr. who
22 worked there?
23 A Yes.
24 Q Okay. And has he been your boss
25 or supervisor at any time during the time you
00031
1 worked there?
2 A Yes.
3 Q Okay. Is he your boss or
4 supervisor today?
5 A No.
6 Q Okay. What position -- does
7 Mr. Snyder, Sr., Charles Snyder, Sr. still work
8 for the Town of Secaucus today?
9 A He still works for the Town, but he is
10 a -- the branch off of the Public Works.
11 Q And now he is in the Department of
12 Parks, is it?
13 A Building and Grounds, I believe it is.
14 Q And do you know what position he
15 holds there?
16 A Supervisor.
17 Q He is a supervisor. And when he
18 worked at the Department of Public Works while
19 you worked there he was a supervisor, right?
20 A Yes.
21 Q And then do you know if he was
22 promoted beyond the level of foreman while you
23 were working there? Did he rise to a higher
24 level at the Department of Public Works --
25 A No.
00032
1 Q -- Charlie Snyder? Do you know if
2 he rose to the level of supervisor at the
3 Department --
4 A When I started he was already
5 supervisory --
6 Q He was already supervisory
7 foreman, right?
8 A Yes.
9 Q Do you know that in May of '06 he
10 was promoted to assistant superintendent of the
11 Department of Public Works? Are you aware of
12 that?
13 A Not really.
14 Q Now, let's talk about your career
15 as a firefighter. You are now a captain?
16 A Yes.
17 Q And what is the chain of command?
18 You start with the firefighter, right?
19 A Right.
20 Q Who does the firefighter report to
21 in the Secaucus Fire Department?
22 A Lieutenants.
23 Q Reports to lieutenants?
24 A Then captain, right.
25 Q Then above the lieutenant is
00033
1 captain?
2 A Captain, right.
3 Q Captain is someone charge of the
4 whole firehouse, right?
5 A Yes.
6 Q Okay. He is in charge of the fire
7 company at the firehouse, right?
8 A Yeah.
9 Q And are you still stationed at the
10 North End Firehouse?
11 A Yes.
12 Q And that's the firehouse that's
13 got its parking lot on the corner of Schopmann
14 and Paterson Plank Road, right?
15 A Yes.
16 Q And have you been stationed at the
17 North End Firehouse since 1987?
18 A No.
19 Q Okay. When did you start being
20 stationed there?
21 A I transferred in '90 -- mid '90s.
22 Q In the '90s. And from that point
23 on you remained stationed --
24 A Yes.
25 Q -- at the North End Firehouse
00034
1 until today, right?
2 A Yes.
3 Q And today -- well, let's not just
4 take today. Let's go back to, say, as of 2004.
5 January 2004 what did the Town of Secaucus pay
6 for your services as volunteer fireman? How
7 much money did you get paid by the --
8 MR. BEVERE: Objection to the term
9 "paid," Your Honor.
10 JUDGE CURRAN: Sustained. If you
11 will rephrase.
12 BY MR. MULLIN:
13 Q Okay. I will try to find a way to
14 rephrase the question. Did the Town of Secaucus
15 mail you a check every month in connection with
16 your service?
17 A No.
18 Q At the -- did you get $300 a month
19 as some sort of stipend from the Town of
20 Secaucus?
21 A It works on percentages. If you don't
22 make your percentage, you don't get your $300.
23 Q But if you -- explain what you
24 mean by that. What kind of percentage?
25 A You have to make a percentage of the
00035
1 monthly calls.
2 Q And what percentage do you have --
3 and by "monthly calls" you mean you have to
4 respond to a certain number of calls to come to
5 the firehouse, right?
6 A Yes.
7 Q And what percentage of those calls
8 do you have to respond to in order to get some
9 money from the Town of Secaucus?
10 A Myself?
11 Q Yeah, you.
12 A 40 percent.
13 Q You have to make 40 percent --
14 A Yes.
15 Q -- of the calls, right? And you
16 remember when I took -- actually, when Kelly
17 Smith in my office took your deposition at my
18 office in January 2007, right?
19 A Vaguely.
20 Q And you told the truth because you
21 were under oath then, right?
22 A Right.
23 Q And you stated that if you make
24 this 40 percent, then you get 300 a month?
25 A A stipend, yes, if you make it.
00036
1 Q And that comes on a check. Who's
2 on that check? Who does that money come from?
3 A Town of Secaucus.
4 Q Town of Secaucus. 300 a month,
5 that's $3,600 a year, right, if you make your
6 percentage?
7 A If you make it.
8 Q And in addition to that, you get a
9 clothing allowance and a check from the Town of
10 Secaucus every year, right?
11 A Maintenance money, correct.
12 Q What's that?
13 A Maintenance money.
14 Q Maintenance money. And that's how
15 much a year?
16 A 500.
17 Q 500. And in the year 2004 you
18 were getting this money, right?
19 A Correct.
20 Q And you've gotten this money
21 throughout your career as a volunteer fireman;
22 is that fair to say, although the number has
23 changed?
24 A Yeah, 2000 I think -- I believe the
25 incentive started, the stipend.
00037
1 Q Okay. So since 2000 you began
2 getting this stipend, right?
3 A Yes.
4 Q Okay. Now, you recall, don't you,
5 that on April 24th, 2004 you gathered with other
6 firefighters, firemen from the North End
7 Firehouse at the firehouse for some sort of
8 party, right?
9 A Yes.
10 Q And that was a party; and part of
11 it, it was to honor the fact that Charles
12 Mutschler had finished his term as captain of
13 the firehouse, right?
14 A It was a night out for the women.
15 Q What?
16 A Night out for the women.
17 Q It was a company function, right?
18 A Yes.
19 Q And you gathered at the firehouse
20 and -- at the firehouse before -- you got into a
21 bus eventually? By "you" I mean the whole
22 company got into a bus --
23 A Yes.
24 Q -- eventually, right, and went to
25 some restaurant, right?
00038
1 A Yes.
2 Q But first at the firehouse folks
3 had some drinks, right?
4 A Yes.
5 Q And then you went to the party at
6 a restaurant, right?
7 A Yes.
8 Q And then you and the fire company
9 were there for some hours, right?
10 A Yes.
11 Q And that party was also attended
12 by the Mayor, right?
13 A Yes.
14 Q And by the Town Administrator, Mr.
15 Iacono, right?
16 A Yes.
17 Q And the Fire Chief Walters was
18 there, right --
19 A Yes.
20 Q -- correct? And the firefighters.
21 And when I say "night out for the women," that
22 was your phrase, right?
23 A Yes.
24 Q There are no women firefighters --
25 A No.
00039
1 Q -- in the fire company, right?
2 A No.
3 Q Do you know of any women
4 firefighters in the Town?
5 A Presently, no.
6 Q How about back then in 2004?
7 A No.
8 Q So when you said, "night out for
9 the women," you mean they had guests?
10 A Wives.
11 Q Wives. And at this party, at this
12 restaurant there was considerable drinking,
13 right?
14 A It's up to the individual.
15 Q Well, in fact, you had --
16 A Nobody forced you to drink.
17 Q -- more than ten drinks at this
18 party, right, at the restaurant?
19 A Wasn't counting.
20 Q Well, hang on a sec.
21 MR. BEVERE: Neil, if I can just
22 have the page and line.
23 MR. MULLIN: Yeah, I'm looking for
24 it.
25 MR. BEVERE: Thanks.
00040
1 MR. MULLIN: Page 19.
2 BY MR. MULLIN:
3 Q Do you remember in your deposition
4 the lawyer from my office said, "How much
5 alcohol did you consume while you were at the
6 function?"
7 And you said what you said just now, "I
8 don't know; I wasn't counting."
9 And then said, "Okay. Would you say
10 you had more than five drinks?"
11 And your answer was, "Yes."
12 And then she said, "More than ten?"
13 And you said, "Yeah."
14 And that was the truth, right?
15 A Yeah.
16 Q And then she said, "Were other
17 people at the function consuming alcohol?"
18 And you said, "Yes."
19 And that was the truth, right?
20 A Yes.
21 Q And she said, "Were most people at
22 the function consuming alcohol?"
23 And you said, "Yes."
24 And that was the truth, right?
25 A Right.
00041
1 Q Okay. So then you came back on
2 this bus, right; is that correct?
3 A Yes.
4 Q Let's take a minute and talk about
5 this bus. This bus was a Town-owned bus, right?
6 A Correct.
7 Q And the Town had given the Town
8 bus to your fire company that night for free for
9 use for your function, right?
10 A Correct.
11 Q And in fact, the driver of the
12 bus, Miss Lunde, was a Town employee, right?
13 A Yes.
14 Q And while you gave her a tip -- I
15 think you personally handed her the tip?
16 A Yes.
17 Q You weren't required to pay her
18 any income for the night she spent driving the
19 bus, true?
20 A Right.
21 Q So after the party the fire
22 company and their escorts, wives or girlfriends
23 got on the bus and drove back to the firehouse,
24 right?
25 A Yes.
00042
1 Q And there folks got off -- out of
2 the bus through the parking lot, right?
3 A Yes.
4 Q They got out of the bus and went
5 through the parking lot, correct?
6 A Yes.
7 Q Okay. Now, at some point you were
8 interviewed by the Police of Secaucus about an
9 incident that happened -- that was alleged to
10 have happened that -- at the time folks were
11 getting off the bus and going through the
12 parking lot; remember that, sir?
13 A Yes.
14 Q Okay. Maybe the best way is to
15 show you the statement. I will show you what's
16 been marked as both D-34 and P-327. And pardon
17 my presence here. I just want to take you
18 through a couple items. Sir, the first page
19 here, do you see your signatures and initials
20 and handwriting on that?
21 A Yes.
22 Q And -- and there you're filling
23 out some forms, like, "Before we ask you any
24 questions," the form says, "you must understand
25 your rights." And those are your initials right
00043
1 after that, right?
2 A Yes.
3 Q "You have the right to remain
4 silent." And then you initialed that, right?
5 A Yes.
6 Q And then the form says, "Anything
7 you say can be used against you in court." And
8 you initialed that, right?
9 A Yes.
10 Q And it says you had the right to
11 talk to a lawyer for advice before we ask you
12 any questions and to have him with you while
13 questioning you. And you initialed that, right?
14 A Yes.
15 Q And it says, "If you cannot afford
16 a lawyer, one will be appointed for you before
17 any questioning, if you wish." And you
18 initialed that, right?
19 A Yes.
20 Q And it says, "If you decide to
21 answer questions now without a lawyer present,
22 you will still have the right to stop answering
23 at any time. You will also have the right to
24 stop answering at any time until you talk to a
25 lawyer." And you initialed that, right?
00044
1 A Right.
2 Q And then it says, "Waiver of
3 Rights." And it says, "I have read this
4 statement of my rights, and I understand what my
5 rights are. I am willing to make this statement
6 and answer questions. I do not want a lawyer at
7 this time. I understand and know what I am
8 doing. No promises or threats have been made to
9 me, and no pressure or coercion of any kind has
10 been used against me." And you initialed,
11 right?
12 A Yes.
13 Q And you signed it, right?
14 A Yes.
15 Q And that was -- then it's dated
16 the 28th of April, 2004, right?
17 A Correct.
18 Q Okay. And then the next document,
19 which is marked -- this is all part of P-327,
20 but it's all -- these next three pages, the
21 statement, itself, are marked D-34, 35 and 36.
22 Well, that's the statement that was prepared
23 that night when you were at the police station,
24 right?
25 A Yes.
00045
1 Q So I will leave this over here.
2 Sir, in this statement one of the things you
3 said is after the bus stopped and while folks
4 were getting out of the bus you claim you heard
5 somebody yell, "It's 1:00. Why don't you
6 fucking assholes go home?" That's what you
7 claim in this statement, right?
8 A Yes.
9 Q And you said you didn't know who
10 said that, right?
11 A Right.
12 Q And then the officer said, "Then
13 what happened?" You see that on the first page,
14 right?
15 And you said, "Some people left. Some
16 walked home." That's what you said, right?
17 A Where are you looking about?
18 Q Look at the first page. Let me
19 come up and help you. Excuse me.
20 A I was looking at the top.
21 Q Okay. You see down here on the
22 first page it says, "Somebody yelled"?
23 A Right.
24 Q And then you have that, right?
25 And you say you don't know who it was that
00046
1 yelled that, right?
2 A Correct.
3 Q And then you say -- "Then what
4 happened," right? The police officer asked,
5 right?
6 A Correct.
7 Q And then it -- then you answered,
8 "Some people left. Some people walked home,"
9 right?
10 A Right.
11 Q Then the question of the officer
12 is, "Did any firemen do anything after that
13 neighbor yelled?"
14 And you answered, "Not that I know of.
15 I couldn't see who it was over there, since I
16 was in front of the engine bay"?
17 A Correct.
18 Q That's what you said, right? And
19 then you go on in this statement and you -- once
20 again you say it was a company bus driven by a
21 Town employee, right?
22 A Right.
23 Q Now, may be one other passage.
24 You say -- on the second page, "Did anyone yell
25 back at the neighbor?"
00047
1 You don't say that -- that's the
2 question, right?
3 A That's the question.
4 Q "Did anyone yell back at the
5 neighbor?"
6 And you say, "I don't know," right?
7 A Right.
8 Q And then the question is, "Did you
9 yell back at the neighbor?"
10 And you say, "No," right?
11 A Correct.
12 Q And it says, "When you" -- the
13 question is, "When you heard someone yelling,
14 why didn't you go to see what was happening?"
15 Said, "I didn't pay attention. I
16 wasn't paying attention," right?
17 I'm sorry, could you answer that last
18 question?
19 A Yes.
20 Q So what you are telling this jury
21 is you were there in that parking lot that night
22 and you never heard firemen yelling and cursing
23 at the residents of 988 Schopmann, right?
24 A Could you explain that?
25 Q You need that question read back?
00048
1 A Yes, please.
2 (Whereupon, the requested portion
3 is read back by the reporter as follows:
4 "QUESTION: So what you are
5 telling this jury is you were there in
6 that parking lot that night and you never
7 heard firemen yelling and cursing at the
8 residents of 988 Schopmann, right?")
9 BY MR. MULLIN:
10 A I was not in the parking lot.
11 Q At some point you were at or near
12 the parking lot, weren't you?
13 A I was in the front in the street.
14 Q All right. That's what you say,
15 right? You say you were at the front in the
16 street, right?
17 A By the engine bay.
18 Q You say you were never in the
19 parking lot?
20 A Right.
21 Q Okay. Let's go with what you say.
22 You say you were in the front and in the street.
23 And my question is the same. You are telling
24 this jury that after you heard somebody yell,
25 "Hey, be quiet," you're telling this jury, "I
00049
1 didn't hear any firemen yelling or cursing"?
2 A I didn't say, "any firemen." I wasn't
3 paying attention.
4 Q Did you hear any firemen yelling
5 and cursing after the person said, "Please be
6 quiet"?
7 A I wasn't paying attention.
8 Q Whether you were paying attention
9 or not, did you hear it?
10 A I don't know whose voice it was.
11 Q Okay. You don't know whose voice
12 it was; but you heard voices yelling and
13 cursing, right?
14 A Everybody was yelling in the parking lot,
15 yeah.
16 Q You heard them yelling and
17 cursing, right?
18 A I heard people saying stuff, but I didn't
19 know who was yelling and staying stuff. I was
20 on the bus talking.
21 Q So it wasn't true when you said
22 you didn't hear any yelling, right?
23 MR. BEVERE: Objection,
24 mischaracterize the testimony and the statement.
25 If you would like to come to sidebar, I would be
00050
1 happy to do it there, Judge.
2 JUDGE CURRAN: Do you want to just
3 rephrase? I will sustain the objection.
4 BY MR. MULLIN:
5 Q I will go back to -- to the
6 statement. Look, on the police statement the
7 question is, "Did anyone yell back at the
8 neighbor?"
9 And you said, "I don't know," right?
10 A Right.
11 Q You said that under oath, right?
12 A Yeah.
13 Q You swore to that, right? But you
14 did know, right? You just told the jury you did
15 know, you did hear yelling, someone did yell
16 back, right? True?
17 A I don't know who they -- who they were
18 yelling at what. I can't see around corners.
19 Q But you -- and you told the Chief
20 that you heard people yelling back, right?
21 A Yes.
22 Q You told the Chief when he asked
23 you and Charles Snyder, Sr. and Charles Snyder,
24 Jr. did you, the three of you, yell back, you
25 told the Chief that, "We yelled back," right?
00051
1 A I never said, "we."
2 Q Let me show you the Chief's
3 statement.
4 A That is --
5 Q This is the Chief's statement,
6 P-329?
7 MR. BEVERE: Judge, objection.
8 Can we have a sidebar, please?
9 JUDGE CURRAN: All right.
10 (Whereupon, the following sidebar
11 discussion is held.)
12 JUDGE CURRAN: Mr. Bevere.
13 MR. BEVERE: Yes, Judge,
14 Mr. Mullin is going to cross --
15 JUDGE CURRAN: I'm sorry, I just
16 want to make sure she could hear you.
17 MR. BEVERE: Mr. Mullin is going
18 to cross-examine this witness with the statement
19 of the Chief. Not this witness' statement.
20 MR. MULLIN: It's what Richie
21 Johnson said to the Chief. The Chief is quoting
22 Richard Johnson.
23 MR. BEVERE: But he is quoting the
24 Chief, all right.
25 MR. MULLIN: It can be done. It's
00052
1 classical cross-examination. The Chief says,
2 "Richie Johnson said this to me." The Chief
3 says, "What did Richie Johnson tell you?"
4 JUDGE CURRAN: That is the police
5 report that he is not going to testify --
6 MR. MULLIN: This is going to
7 go -- I can bring the Chief in and put this in.
8 I thought we were going to put this statement
9 in, anyway. It's certainly a good faith basis
10 for cross-examination.
11 JUDGE CURRAN: Is there an
12 objection the statement goes in as evidence?
13 MR. MULLIN: If not, keep the
14 Chief on hold, bring him --
15 MR. BEVERE: No, Judge, I don't
16 have an objection to the Chief's statement
17 coming in as evidence. I have an objection to
18 asking this witness what the Chief said during
19 his police -- during his statement to the
20 police, which this witness was not present for.
21 And this -- and this witness did not even see
22 that statement until his deposition three years
23 later. I think it's just unfair to ask this
24 witness about what the Chief said.
25 JUDGE CURRAN: But if it's going
00053
1 in as evidence -- I mean, I could understand why
2 you would object; but I don't see that it's --
3 which rule are you citing? I just can't think
4 of any myself.
5 MR. BEVERE: Well, because, Judge,
6 what you are -- what you are looking -- what he
7 is looking to do is to impeach this witness' --
8 JUDGE CURRAN: I got what he --
9 MR. BEVERE: -- with a statement
10 of another -- statement of another individual.
11 JUDGE CURRAN: But if it's in
12 Evidence or going into Evidence, you know
13 what -- I mean, sometimes people have objections
14 like this; and they say, "Well, it may,
15 depending on what's being said" or whatever.
16 But if -- if it's definitely going into
17 Evidence, the fact this -- it's not in Evidence
18 already is really --
19 MR. BEVERE: All right. So Your
20 Honor is ruling if the statement is going into
21 evidence, then he can cross-examine --
22 JUDGE CURRAN: I am not saying
23 it's going into Evidence. I'm saying if that's
24 what the agreement is or if that's what the
25 intention is, then it would be a fair question.
00054
1 MR. BEVERE: Judge, I think the --
2 I think the question really should be: Are you
3 aware that -- are you aware that the Chief told
4 the police?
5 JUDGE CURRAN: Well, a foundation,
6 fair argument.
7 MR. BEVERE: That's what I think
8 is really the basis of the objection.
9 JUDGE CURRAN: Is a fair argument.
10 MR. BEVERE: I think that -- that
11 what's -- think: Are you aware that the Chief
12 said this when he spoke to the police?
13 JUDGE CURRAN: Okay.
14 MR. BEVERE: I think that's --
15 JUDGE CURRAN: Foundation
16 argument.
17 MR. BEVERE: Yes.
18 JUDGE CURRAN: If that's the
19 objection, I will grant that objection. But if
20 this is going in -- is there an agreement now
21 this is going in?
22 MR. MULLIN: I need the Chief
23 here.
24 JUDGE CURRAN: I am not saying it
25 should or shouldn't. I just need to know.
00055
1 MR. BEVERE: Well --
2 MR. MULLIN: I thought we did
3 agree to this one.
4 MR. BEVERE: Yeah, it's -- it's
5 part of the dep readings.
6 JUDGE CURRAN: I can understand
7 sometimes there are thousands, it looks like to
8 me --
9 MR. BEVERE: No, I understand,
10 Judge.
11 JUDGE CURRAN: -- pieces of paper
12 in this case.
13 MR. BEVERE: My objection --
14 JUDGE CURRAN: I am not holding
15 you to that. If you have a reason not to do
16 it --
17 MR. BEVERE: My objection was more
18 in terms of the foundation, whether this witness
19 was aware.
20 JUDGE CURRAN: I will sustain it
21 in regard to foundation.
22 MR. MULLIN: Foundation. Just ask
23 his awareness?
24 JUDGE CURRAN: Thank you.
25 (Whereupon, sidebar discussion is
00056
1 concluded.)
2 BY MR. MULLIN:
3 Q Sir, I am going to rephrase the
4 question. Are you aware wear that Fire Chief
5 Frank Walters in his statement that he signed
6 and dated on April 28th, 2004 indicated that
7 both you and Chuck Snyder, Jr. told him that,
8 "We," meaning you and Snyder, Jr., yelled back
9 when the neighbor yelled or when the neighbor
10 said, "Be quiet"?
11 A I don't remember.
12 Q Are you aware of that statement?
13 A I don't remember. I don't remember.
14 Q You don't remember. Before this
15 event of April 25th, 2004, that is what this
16 lawsuit is about, the alleged attack on the home
17 of Snyder -- of deVries and Carter, the Town of
18 Secaucus had given you no training with respect
19 to harassment and or discrimination?
20 MR. BEVERE: Objection.
21 Q Before this --
22 MR. BEVERE: Can we come to
23 sidebar? Thank you.
24 (Whereupon, the following sidebar
25 discussion is held.)
00057
1 MR. BEVERE: I have relevance
2 objection, Judge, to the issue of workplace
3 harassment and discrimination policies. The LAD
4 is no longer a part of this case. This is not a
5 Lehmann case. This is not a workplace sexual
6 harassment case. And I believe that the
7 applicability of workplace sexual harassment
8 policies is not applicable to this case.
9 MR. MULLIN: I think Mr. Bevere
10 misheard my question.
11 MR. BEVERE: I think he could ask
12 him if he ever received any training in regard
13 to dealing with members of the public. But to
14 ask him about workplace sexual harassment
15 policies, I think that that's -- that that's out
16 of this case.
17 MR. MULLIN: I think Mr. Bevere
18 misheard my question. I didn't use the word
19 "workplace." This is -- this case is about
20 harassment and discrimination under -- in
21 violation of the State Constitution. It's about
22 a bunch of firemen who harassed and, again --
23 harassed, created hostile environment and
24 discriminated against my client in violation of
25 the State Constitution.
00058
1 So, of course, it's about
2 harassment and discrimination. I didn't use the
3 word "workplace." And one of the ways
4 deliberate indifference is proven is by showing
5 an -- a complete and utter absence of training.
6 In the 21st Century it's impossible to imagine
7 an entity, a corporate entity or Town entity
8 never having done any sort of training.
9 This is the Fire Department.
10 Deals with the community every day. Of course,
11 any Town that's not locked into the 19th Century
12 would have training.
13 So -- so I never asked the
14 question he is objecting to, Your Honor.
15 JUDGE CURRAN: Hold on. I just
16 want to read the question.
17 MR. BEVERE: Sure.
18 JUDGE CURRAN: Is the objection to
19 the words "harassment and discrimination,"
20 rather than, for instance, "bias," which is the
21 other side of the exercise of harassment or
22 discrimination? What's the exact objection? I
23 thought maybe I didn't hear the question right.
24 MR. BEVERE: The objection, Judge,
25 was that I -- my understanding of the question
00059
1 was he was going to ask him if he received --
2 JUDGE CURRAN: Any training.
3 MR. BEVERE: -- policies and
4 training on workplace harassment. And that has
5 no applicability.
6 JUDGE CURRAN: He didn't say,
7 "workplace." He said, "harassment and
8 discrimination," which is not unlike the
9 questions that have already been asked in regard
10 to training in bias crimes.
11 MR. BEVERE: I mean, Judge --
12 MR. MULLIN: Let me also say this,
13 Your Honor. I'm on cross-examination here. I
14 deserve, as you know, under the law, a wide -- a
15 wide scope in cross-examining. And of course, I
16 have to prove deliberate indifference through
17 direct and circumstantial evidence. The
18 records -- the cases are replete with -- with
19 the principle that if the complete and utter
20 failure to train is evidentiary of indifference
21 towards and condoning or ratifying
22 discrimination.
23 This is a discrimination case
24 based on discrimination against people because
25 of their orientation and -- and harassment of
00060
1 them and the creation of a hostile living
2 environment for them. Now, Your Honor has said
3 it all comes under the State Constitution, and I
4 am aware of that ruling. But that doesn't
5 change the facts that this is a case that
6 involves harassment and discrimination.
7 JUDGE CURRAN: I'm not sure
8 exactly which cases you're referring to; but my
9 basic recollection, it is not, shall we say,
10 discrimination per se but it can be inferred to
11 be by the jury a lack of training.
12 MR. MULLIN: Sure. See, the way
13 the law works, as I understand it, is -- again,
14 there are always two elements in this case, as
15 there are in many hostile environment cases.
16 It's what did the -- what did the really bad
17 people do and what did the Town entity or
18 corporate entity do to prevent it or stop it --
19 JUDGE CURRAN: Way it should be,
20 right.
21 MR. MULLIN: -- or stop it or
22 respond to it. I am always dealing in two. I
23 am always trying to show direct -- the complete
24 and utter failure to train prior to April 25th,
25 2004 is an extremely probative fact. And -- and
00061
1 so -- given that jurisprudence. And that's what
2 I'm asking.
3 And I -- you know, frankly,
4 asking about whether they did work training as
5 to workplace discrimination, harassment would be
6 perfectly appropriate too because that would
7 have sensitized these men to the -- the
8 prohibitions of law in the law against creating
9 a hostile environment, attacking people because
10 of sexual orientation. But I haven't asked that
11 question. I'm just -- I'm just asking a
12 question I asked in his dep without objection,
13 which is what --
14 MR. BEVERE: Judge, when --
15 JUDGE CURRAN: When the question
16 was asked --
17 MR. BEVERE: When the dep was
18 taken, it was still LAD in the case. This is
19 not a hostile life environment case.
20 JUDGE CURRAN: The objection
21 wasn't raised in regard to other witnesses with
22 regard to training.
23 Mr. Paris.
24 MR. PARIS: Training -- there was
25 training with regard to the bias.
00062
1 MR. BEVERE: Bias, that kind of --
2 that's different. That's different than
3 saying -- none of the police witnesses were
4 asked about workplace sexual harassment. There
5 is -- there is a Police Department general
6 order, Your Honor. It was provided in discovery
7 when this case was an LAD case. Those questions
8 were not asked of the police witnesses. This is
9 a situation where -- where we're talking about,
10 if what the plaintiffs say is true, a violation
11 of the criminal law.
12 MR. MULLIN: The what?
13 MR. BEVERE: Violation of the
14 criminal law.
15 MS. SMITH: What this case is
16 about is the violation of --
17 MR. PARIS: Allegation --
18 MR. BEVERE: If the allegations,
19 what the plaintiffs say, is true, what happened
20 that morning is a violation of the criminal law.
21 Mr. Mullin is asking this witness whether the
22 Town of Secaucus had a policy in place to
23 prevent violations of the criminal law --
24 MR. MULLIN: Your Honor.
25 MR. BEVERE: -- trained people not
00063
1 to violate the criminal law.
2 MR. MULLIN: Let me make really
3 clear --
4 JUDGE CURRAN: Because of
5 harassment? Just because of the word
6 "harassment"?
7 MR. MULLIN: Your Honor, let me
8 just make clear. Number one, I will say this
9 again because I can't say this too many times on
10 the record. This is not a case under 42 U.S.C.
11 1983. I have never cited it. This is not a
12 Federal case under 42 U.S.C. 1983.
13 Number two, this is a case that I
14 brought under the LAD and I brought under the
15 State Constitution and, of course, 10:6-2, the
16 Civil Rights statute.
17 This is a case that alleges that
18 my clients were the victims of discrimination
19 and harassment and that the Town's liable
20 because they showed deliberate indifference,
21 using the Constitutional standard to this -- to
22 this problem as it was looming and then showed
23 complete deliberate indifference when the mob
24 took place and they allowed this mob to live
25 unscathed and untouched next to these poor
00064
1 traumatized men for six months.
2 They knew what this mob had done.
3 And -- and they deliberately let the firehouse
4 reopen. They knew of all the complaints that
5 flowed from it. And knowing, with all those
6 complaints, they -- they deliberately and
7 indifferently allowed my clients to have to
8 essentially live next to a gang people that had
9 mugged their house.
10 JUDGE CURRAN: Okay. Okay.
11 MR. BEVERE: Judge, I think we're
12 getting far afield of what my objection is.
13 MR. MULLIN: That's what the case
14 is about.
15 JUDGE CURRAN: I understand what
16 the case is about.
17 MR. BEVERE: I understand
18 what's -- I understand Mr. Mullin's summation.
19 MR. MULLIN: Well, they shift into
20 arguing motions, so I can't be faulted. But
21 anyway, I just want to ask this simple little
22 question.
23 MS. SMITH: Didn't say anything
24 about workplace, so if that's the objection --
25 MR. PARIS: Judge, it's so much of
00065
1 a big issue because you could ask: Did they --
2 did the -- did the Town train you not to throw
3 things at people's homes? Did the Town -- did
4 the Town train you not to bang your hands on
5 people's houses? You could take -- those are
6 the allegations of what the firemen -- those are
7 the allegations. And the case -- case is
8 involving the workplace again. We go back to
9 training requirements for the workplace. You
10 are not talking about training --
11 MR. BEVERE: And this isn't --
12 MR. MULLIN: Can we have an
13 objection to this question?
14 JUDGE CURRAN: What is the basis
15 for the --
16 MS. SMITH: Objection?
17 JUDGE CURRAN: No, what is the
18 basis for the question? Where are you asserting
19 there should be training? Because he worked for
20 the DPW, which would have --
21 MR. MULLIN: I would say --
22 JUDGE CURRAN: -- rubbed off or
23 because he was a fireman?
24 MR. MULLIN: As a fireman, who
25 deals regularly with the public, he certainly
00066
1 should have had training not to discriminate
2 against members of the public.
3 MR. BEVERE: But --
4 MR. MULLIN: And as a DPW, who
5 deals with the public, he should have had
6 training.
7 JUDGE CURRAN: I got it.
8 MR. BEVERE: Judge, this isn't
9 a -- this isn't a discrimination case in the
10 classic sense, whereby you're saying the -- the
11 Fire Department failed to provide services to
12 people or provided them in discriminatory
13 manner. What you are talking about, what is
14 alleged to be a criminal act of harassment.
15 That's what we're talking about. Possibly, you
16 know, bias, intimidation, harassment. I don't
17 see what -- what the relevance of sexual
18 harassment policies or training has to do with
19 that.
20 MR. MULLIN: Can I respond?
21 Should I respond to that?
22 This is not criminal case. I am
23 not trying to meet the criminal standard. This
24 is a civil case.
25 JUDGE CURRAN: Now, why would you?
00067
1 No surprise. No surprise.
2 MR. MULLIN: It's a burden I don't
3 want to take.
4 JUDGE CURRAN: Right.
5 MR. MULLIN: But this is a civil
6 case. And it is a case that is a discrimination
7 case and a harassment case and motivated by
8 discrimination. It's all over the complaint.
9 It's all over the pleadings. That's what this
10 case is about.
11 In the Peeper v. Princeton case
12 the Supreme Court of New Jersey says under State
13 Constitution discrimination is prohibited under
14 the State Constitution. Article 1, Section 5
15 specifically. Article and Section 5 of the
16 Constitution -- I hope it's not 4. I hope it's
17 5. That's my memory -- specifically prohibits
18 discrimination. That has been interpreted in
19 the Gail case by the Supreme Court and the
20 Louis.
21 MS. SMITH: Louis.
22 MR. MULLIN: Louis v. Harris I
23 think was the name. Constitution prohibits
24 discrimination against people because of their
25 sexual orientation.
00068
1 Well, that's what this case is
2 about. This is a discrimination case. And
3 it's -- the case law is -- is just replete
4 with -- with the principle that it is probative
5 of a -- of an entity's liability for
6 discrimination, if they completely failed to
7 train.
8 It's an example of deliberate
9 indifference when a Town doesn't do anything in
10 20 years to train members of their -- members of
11 their Fire Department who deal on a regular
12 basis in a diverse community with people.
13 It's -- it's -- with the public.
14 I'm asking a very simple
15 question. They have objected to a question I
16 didn't ask. I'm not asking about workplace
17 discrimination. I am asking about training with
18 respect to the core issues of this case. And
19 I'm on cross-examination. Your Honor, I don't
20 believe this is a close question at all.
21 MR. PARIS: Judge.
22 JUDGE CURRAN: Mr. Paris.
23 MR. PARIS: The allegations when
24 we started this case against the firemen weren't
25 that they discriminated against the plaintiffs.
00069
1 The allegations against the firemen were that
2 they harassed the plaintiffs. And what -- what
3 do we hear with all the police officers
4 yesterday? Why didn't you arrest Snyder, Sr.?
5 Why didn't you arrest Mutschler? Why didn't you
6 arrest Junior? Why didn't you arrest these men?
7 The allegation was that they committed criminal
8 acts. That was what the allegation was. How
9 many times did we hear a criminal investigation,
10 that there was a criminal investigation by the
11 Attorney General's Office?
12 And now, by implication, what
13 Mr. Mullin is trying to do is tell the jury
14 somehow the Town was lacking because if they had
15 given training to these firemen, they would not
16 have violated the criminal statutes of the State
17 coming home from a party on Saturday night where
18 there was drinking going on and that if somehow
19 they had given some sort of training, which
20 really is workplace training, that they would
21 not have broken the law.
22 I mean, if -- if, God forbid,
23 they had killed someone, is Mr. Mullin going to
24 contend, well, you didn't give harassment
25 training; therefore, they wouldn't have shot
00070
1 somebody. That's what this is about. This was
2 an act of harassment by the Fire Department.
3 MR. BEVERE: Act of
4 discrimination.
5 MR. PARIS: Deliberate
6 indifference by the police and Town officials.
7 That's what this case was about.
8 MR. BEVERE: Right.
9 MR. PARIS: Now we are going so
10 far afield with that; and the problem is it
11 gives the jury the impression that the Town
12 officials did something wrong, which -- which,
13 if you train not to violate the criminal law,
14 somehow you are not going to come home on
15 Saturday night drunk and violate the criminal
16 law.
17 JUDGE CURRAN: No, but the -- I
18 don't -- I will be happy to tell the jury that's
19 not what the standard is. The standard is it --
20 MR. PARIS: Then why would you
21 confuse them?
22 JUDGE CURRAN: If they're --
23 according to most of the cases, not all of them,
24 frankly, if there was training, that affects the
25 Town's liability, if you will. And I'm not
00071
1 saying it excuses it, but it affects it. It's a
2 factor. No one is saying that if there was
3 training, they would not have done this. Just.
4 MR. PARIS: That's what they're
5 saying. That's what the plaintiffs are
6 implying.
7 JUDGE CURRAN: No, they are
8 saying, as I understand it -- I could be
9 wrong -- because there was no training, that is
10 circumstantial evidence, if you will, maybe even
11 direct, of deliberate indifference. Not --
12 MR. PARIS: Deliberate
13 indifference to this action that -- therefore,
14 they were deliberately indifferent to --
15 JUDGE CURRAN: That's the
16 allegation. I'm not sure how far that's going
17 to go.
18 MR. PARIS: How could that have
19 proximally caused the violation of the criminal
20 statutes?
21 MS. SMITH: We are not talking
22 about criminal statutes.
23 MR. MULLIN: This is not a
24 criminal case, and I'm not trying to prove --
25 JUDGE CURRAN: First of all,
00072
1 harassment -- you know, yeah.
2 MR. MULLIN: There is subcriminal
3 harassment and there is criminal harassment.
4 JUDGE CURRAN: And there is civil
5 harassment.
6 MR. PARIS: Then why are they
7 make -- then why did we go through this exercise
8 yesterday as to why the police didn't arrest
9 Snyder?
10 JUDGE CURRAN: Separate issue.
11 MR. PARIS: But the issue of
12 training is going to the same thing. Why are
13 they -- why -- why isn't the question did the
14 Town train you not to violate the criminal
15 antibias statutes?
16 MR. MULLIN: Does the Town have --
17 there are many acts of deliberate indifference
18 here. One could ask: Does the Town have a
19 policy of deliberate indifference with respect
20 to the rights of people that the discrimination
21 laws are intended to protect?
22 Let me wait until the judge comes
23 back.
24 I just want to indicate, Your
25 Honor, you are reaching for something. I will
00073
1 wait for you.
2 JUDGE CURRAN: Thank you. I am
3 just trying to see if I have that case. Go
4 ahead.
5 MR. MULLIN: There are -- there
6 are many facets in this case to showing
7 deliberate indifference. Nothing is easier than
8 showing the deliberate indifference the Fire
9 Chief and the Town Administrator, the Mayor and
10 the council because they left this -- this
11 mob -- and I will try not to do closing argument
12 language, but when they left what I call the
13 "mob" right next door to my clients for six
14 months.
15 And we have an expert who
16 testified that that was horribly traumatizing.
17 As Mr. deVries eloquently said, I was a prisoner
18 in my own house because of what these people
19 did, the deliberate indifference.
20 Then there is the issue of
21 whether that Town policy in -- can be shown
22 through circumstantial evidence by how the
23 police did -- failed to -- to investigate
24 properly and in some ways actually compromised
25 the investigation. What that doesn't reflect,
00074
1 this -- this overall Town policy of letting
2 these firemen get away with anything.
3 We have the amazing statement
4 that Captain Buckley declared the "El
5 Homo" incident on the wall a non-bias event.
6 This is a Town where the policy was to protect
7 these firemen no matter what, no matter how
8 crude their sexual harassment, no matter how
9 awful their attacks on people.
10 JUDGE CURRAN: Okay.
11 MR. MULLIN: And that's what I was
12 trying to show.
13 MR. BEVERE: Note my strong
14 disagreement with that statement.
15 JUDGE CURRAN: I will note the
16 strong disagreement.
17 MR. PARIS: Your Honor, I just
18 want to understand. Comments are made by Mr.
19 Mullin about what this case is, and isn't -- he
20 mentioned about 1983. We are not going to argue
21 about this at this point.
22 JUDGE CURRAN: No.
23 MR. PARIS: But I don't want our
24 silence to stand as assent to those comments.
25 That's all.
00075
1 MR. MULLIN: Other thing I want to
2 add is that Mr. Paris specifically said during
3 this argument that we do not allege harassment
4 and discrimination in this case. All over my
5 complaint is the phrase that these action --
6 everything we are talking about, quote,
7 constituted harassment and discrimination on the
8 basis of sexual orientation. Paragraph one of
9 the complaint. Four -- paragraph 40 I refer to
10 the harassment and discriminatory actions of the
11 codefendants. Mr. Paris is -- when he says this
12 case has not alleged harassment and
13 discrimination, it's all over my complaint
14 because that's what my case is about.
15 MR. PARIS: Again, I have said it
16 before today; it's not about what the complaint
17 says -- we are beyond what the complaint says --
18 it's what the proofs are. It's what the case
19 has been alleged to be. And what -- what has
20 been alleged against the firemen is that they
21 should have been arrested because they violated
22 the criminal law. That's what this case was
23 about.
24 MS. SMITH: That is not what this
25 case was about.
00076
1 MR. MULLIN: Why don't you show me
2 where that is in the complaint. I am handing
3 the second amended complaint.
4 MR. PARIS: I am beyond the
5 complaint.
6 MR. MULLIN: You are.
7 MR. PARIS: This is what this --
8 JUDGE CURRAN: But harassment --
9 that the fire harassed these two plaintiffs is
10 clearly in the case. Forget --
11 MR. PARIS: That's what I'm
12 saying. That's what I'm saying. Mr. Mullin
13 keeps talking about a mob that did these things
14 to the plaintiffs, okay. What is that about?
15 That's about them violating criminal statutes of
16 the State of New Jersey. That's what it's
17 about. Why do we have -- why do we have the
18 police involved in this case? Because it's
19 alleged that they didn't arrest anyone.
20 JUDGE CURRAN: Even assuming
21 that's true, then where does that carry through
22 to the objection on this question?
23 MR. PARIS: So the objection --
24 because if what you're saying is the firemen
25 acting as a mob -- if you take Mr. Mullin's
00077
1 argument, if they were acting as a mob and if
2 you take their argument that the police did not
3 do what they should have done in terms of
4 arresting these people and bringing them to
5 justice, what do you have? You have them
6 violating the criminal law.
7 And what he is implying by this
8 question is somehow the Town had an obligation
9 to train firemen not to violate the law, the
10 criminal laws of the State of New Jersey. You
11 are not allowed to throw things at people's
12 houses. You are not allowed to scream --
13 JUDGE CURRAN: Okay. Now --
14 MR. PARIS: That's the training
15 that you -- that reflects that.
16 JUDGE CURRAN: So are you saying
17 that the training -- that there is no document
18 saying one had to have training?
19 MR. PARIS: What I'm saying is
20 that they're creating a standard. They're
21 creating a standard of training that has nothing
22 to do with the acts alleged against the firemen.
23 In other words, the acts alleged against the
24 firemen are -- and I'm just using shorthand, you
25 know. I'll accept -- the act alleged against
00078
1 the firemen is that they acted as a mob and did
2 things for which they should have been arrested
3 and brought to justice.
4 MR. MULLIN: They should --
5 JUDGE CURRAN: Or.
6 MR. PARIS: Isn't that what their
7 allegation is?
8 MR. MULLIN: Or they should have
9 been investigated and brought --
10 JUDGE CURRAN: Right. Or there --
11 or there should have been civil penalties,
12 perhaps.
13 MR. PARIS: But look at the
14 allegations. Look at the allegations being made
15 against the firemen, not being made against the
16 Town officials. But the allegations made
17 against the firemen are that they -- they were
18 shaking fences, they were climbing over the
19 fences, they were doing this, they were doing
20 that. Those are all violations of the criminal
21 statute. And somehow now, with training of the
22 firemen, were they trained to -- to do what?
23 How would you -- were they trained not to do
24 what they did Saturday night? Is that what the
25 question is? Because if it isn't, it doesn't
00079
1 matter.
2 MR. MULLIN: Are you suggesting
3 that if corporations -- that all the training
4 that's done by the State of New Jersey and
5 corporations --
6 JUDGE CURRAN: The judges sit
7 through.
8 MR. MULLIN: -- to prevent
9 harassment has no effect at all?
10 MR. PARIS: What I'm saying --
11 MR. MULLIN: Of course, it could
12 prevent an incident like this.
13 MR. PARIS: A case where somebody
14 violated the criminal law in any which way, does
15 an employee, employer -- does a Town now have an
16 obligation to say, "You didn't train me we
17 weren't supposed to violate that criminal law"?
18 Well, it's a crime. Are we -- is the standard
19 now -- is the standard now that you are supposed
20 to train people --
21 JUDGE CURRAN: Well, harassment is
22 not always a crime. I mean, we have harassment
23 all the time. For easy example, in domestic
24 violence cases.
25 MR. MULLIN: Sure.
00080
1 JUDGE CURRAN: Those are not
2 criminal cases. Those are not criminal
3 standards. Harassment and discrimination -- I
4 hesitate to say this, but are almost -- this is
5 not properly phrased -- at the lowest end of the
6 criminal statutes. I mean, they're -- they're
7 just not -- I -- if your argument is that
8 harassment and discrimination are crimes and
9 there was no obligation for the Town to train
10 them against breaking the law, I don't really
11 see that as a legitimate argument. But
12 harassment and discrimination, especially
13 discrimination, discrimination is not a criminal
14 act.
15 MR. PARIS: In this circumstance,
16 the relationships between the parties you're
17 talking about, harassment is not a crime, okay.
18 What we're talking about, when you have a
19 relationship in a workplace setting, okay, but
20 outside of that workplace setting, if you're
21 harassing me, okay, that's -- that's the crime
22 of harassment. That's all.
23 You know what, I think we have
24 made the argument.
25 JUDGE CURRAN: I think everybody
00081
1 has preserved all their rights on the record.
2 Everybody has put their argument. It's on the
3 record. I am going to overrule the objection,
4 but I will note your strong objection.
5 MR. BEVERE: Thank you, Judge.
6 JUDGE CURRAN: We have one juror
7 out, so we just need to wait a second.
8 MR. MULLIN: When that juror comes
9 back, Your Honor, would you overrule it on the
10 record before the jury? Would you indicate your
11 ruling on the -- this objection, then I will go
12 ahead with the question?
13 MR. PARIS: You know something, if
14 I may, Your Honor has -- has not really said,
15 "Objection sustained" in front of the jury on
16 very many occasions.
17 MR. MULLIN: Well, you have.
18 JUDGE CURRAN: I have on some and
19 not on others. Usually at sidebar, frankly,
20 what I don't like is to appear to, you know,
21 help one side or the other. It drives me crazy
22 when you come to sidebar, there is a decision
23 and then one of the attorneys smiles and walks
24 over to the middle of the courtroom, says,
25 "Thank you very much, Your Honor." Because I
00082
1 think these are legal issues; and you know, I
2 could sustain an objection that really doesn't
3 have the impact that it might before the jury.
4 So at this point I am not going
5 to do that, Mr. Mullin, just to be fair to both
6 sides.
7 MR. BEVERE: Thank you, Judge.
8 JUDGE CURRAN: But I will note
9 your objection on the record. Thank you. The
10 juror is back.
11 (Whereupon, sidebar discussion is
12 concluded.)
13 JUDGE CURRAN: Thank you.
14 Mr. Mullin.
15 MR. MULLIN: Your Honor, may I
16 have that last question, please, read back.
17 JUDGE CURRAN: Surely.
18 (Whereupon, the requested portion
19 is read back by the reporter as follows:
20 "QUESTION: Before this event of
21 April 25th, 2004, that is what this
22 lawsuit is about, the alleged attack on
23 the home of Snyder -- of deVries and
24 Carter, the Town of Secaucus had given
25 you no training with respect to
00083
1 harassment and or discrimination?")
2 BY MR. MULLIN:
3 Q True?
4 A True.
5 MR. MULLIN: I have no further
6 questions.
7 JUDGE CURRAN: Thank you. Mr.
8 Bevere.
9 CROSS EXAMINATION BY MR. BEVERE:
10 Q Mr. Johnson, with regard to that
11 last point, you are a full Town -- time employee
12 with the Secaucus Department of Public Works?
13 A Correct.
14 Q Okay. And did you receive
15 harassment discrimination training for your
16 full-time job?
17 A Yes.
18 Q Now -- and in addition, after the
19 incident of April 25th, 2004 were the
20 firefighters required to -- the volunteer
21 firefighters required to attend sensitivity
22 training?
23 A Yes.
24 Q Now, Mr. Johnson, I just want to
25 talk briefly about -- before I get into that,
00084
1 Mr. Mullin had you look at your statement and
2 also the statement from Frank Walters, correct?
3 A Correct.
4 Q Frank Walters is the former Fire
5 Chief of Secaucus, correct?
6 A Yes.
7 Q And Mr. Mullin had you read a
8 portion of a statement where it said -- I don't
9 want to get it wrong -- "The neighbor yelled at
10 us to be quiet, and we yelled back." Do you
11 remember that?
12 A Yes.
13 Q Okay. Now, can you read what I
14 have underlined as far as the Fire Chief's
15 statement, which is one, two, three, four,
16 five -- six lines from the bottom? What does
17 that say?
18 A "What did Richie Johnson tell you?"
19 Q And what was your answer to
20 that -- what was the Chief's answer to the
21 question, "What did Richie Johnson tell you?"
22 A "The same thing. That's what they're
23 getting" -- "getting off the bus. Then they
24 yelled" --
25 MR. MULLIN: Can you read the rest
00085
1 of it?
2 A "They yelled" -- "Richie said" -- "we
3 were" --
4 MR. MULLIN: Excuse me, Your
5 Honor.
6 Q Excuse me. Just go a little
7 slower.
8 MR. MULLIN: Can we have the --
9 can we have the witness start at the beginning?
10 MR. BEVERE: I will. I will have
11 him read it slower, Judge, from the beginning.
12 JUDGE CURRAN: Thank you.
13 BY MR. BEVERE:
14 Q I will start with the question of
15 the detective to Chief Walters.
16 A "What did" --
17 Q I will read that. Sorry. "What
18 did Richie Johnson tell you?"
19 And if you could read your answer
20 slowly.
21 A This is Frank's answer, not mine.
22 Q Frank's answer, not yours. Slowly
23 and completely.
24 A "Something" -- oh, "Same thing." "That
25 they were getting off the bus. They" -- oh,
00086
1 "They yelled and they yelled --"
2 MR. MULLIN: Objection, Your
3 Honor, it's not what it says.
4 MR. BEVERE: He is -- he is
5 trying, Your Honor. He is reading --
6 THE WITNESS: Your Honor, I'm very
7 nervous.
8 MR. MULLIN: Okay. Look, Your
9 Honor --
10 MR. BEVERE: Judge.
11 MR. MULLIN: Can counsel just read
12 it?
13 MR. BEVERE: Why don't I read it?
14 MR. MULLIN: Don't want to put the
15 witness in a stressful --
16 MR. BEVERE: I will read --
17 MR. MULLIN: Your Honor, as a
18 completeness matter, can we have the question
19 start with, "Do you know what Chuck Snyder, the
20 son said?" Because goes back to the same thing.
21 JUDGE CURRAN: Same thing, right.
22 BY MR. BEVERE:
23 Q "Do you know what Chuck Snyder,
24 the son, said?" This is the question to the
25 Chief.
00087
1 "He basically said the same thing.
2 Nothing specific. That the neighbor yelled at
3 us to be quiet and that we yelled back."
4 "When he said, "we," do you know who
5 "we" is?"
6 "Just the members of Rescue 1 and
7 Engine 2. No specific names."
8 "Do he say" -- I believe it's a typo.
9 "Did he say what exactly was said?"
10 Answer, "No. He said just that they
11 yelled and we yelled."
12 "What did Richie Johnson tell you?"
13 "Same thing. That they were getting
14 off the bus. They yelled, and we yelled.
15 Richie Johnson said that he was continuing to
16 get the women off the bus while the yelling was
17 going on."
18 Is that accurate?
19 A Yes.
20 Q That's what you told the Chief?
21 A Yes.
22 Q You did not participate in any
23 yelling?
24 A Correct.
25 MR. MULLIN: Objection, leading.
00088
1 MR. BEVERE: Judge, this --
2 JUDGE CURRAN: Sustained. Just
3 rephrase it.
4 BY MR. BEVERE:
5 Q Mr. Johnson, did you tell the
6 Chief that you personally yelled?
7 A No.
8 Q What did you tell the Chief as to
9 where you were and what you were doing while you
10 heard the yelling going on?
11 A I was in the street by the front of the
12 engine bay helping the women off the bus.
13 Q That's what you said in your
14 statement to the police -- that's --
15 A To the Chief.
16 Q That's what you said in your
17 statement to the police, right?
18 A Correct.
19 Q And that's what Frank Walters told
20 the police?
21 A Yes.
22 Q Now, Mr. Johnson, I want to step
23 back to a couple of points that you had made
24 earlier. Just to step back, I think in response
25 to one of Mr. Mullin's questions you said that
00089
1 you're required to make 40 percent of the calls
2 in order to get your stipend?
3 A I am, but the other members are
4 35 percent.
5 Q Why are you at a higher
6 percentage?
7 A Town employee.
8 Q Okay. So Town employees are
9 required to respond to more percentages of fire
10 calls --
11 A Correct.
12 Q -- than non-Town employees --
13 A Correct.
14 Q -- in order to get the stipend?
15 A Yes.
16 Q Okay. Now, did the entire company
17 go on the bus to this party?
18 A No.
19 Q Okay. Did the entire company go
20 to the party?
21 A There was, I think, one or two people
22 missing that didn't show.
23 Q Now, you talked about people that
24 were invited to the party or people that were at
25 the party, let's say. Do you know -- and if you
00090
1 don't, you don't, you can tell us, that's fine.
2 But do you know why the Mayor was at the party?
3 A Invited guest.
4 Q And how about Chief Walters?
5 A Invited guest.
6 Q Do you have a -- well, let me ask
7 you this question. Were there other invited
8 guests to the party aside from the Mayor and the
9 Fire Chief and, obviously, the members of the
10 Engine 2?
11 A It's usually basically about it, the
12 Chief and the Mayor and Council.
13 Q You invite the Mayor and Council
14 for what reason?
15 A Invited guests because they help us out,
16 we help them out.
17 Q Okay. When you say you help them
18 out, we help you out, what are you referring to?
19 A Basically, you know, they -- just out of
20 generosity, you know, because if we need
21 something, fire rigs and stuff like that, they
22 help us. Equipment, if we need it, we have to
23 go through them, so --
24 Q Let's talk about the party that
25 night. Whose party -- who organized this party?
00091
1 A We get a committee of two or three guys
2 and we find a hall.
3 Q Was this a company party?
4 A Yes.
5 Q Was this -- this wasn't a Fire
6 Department party?
7 A No.
8 MR. MULLIN: Objection, Your
9 Honor, leading. Ask that it be stricken.
10 MR. BEVERE: I will rephrase,
11 Judge.
12 MR. MULLIN: I would ask that
13 question be stricken. It's a leading question.
14 JUDGE CURRAN: Sustained.
15 BY MR. BEVERE:
16 Q Was this a Fire Department party?
17 A No.
18 Q Was this a Town party?
19 A No.
20 Q Who paid for the party?
21 A The fire company, itself.
22 Q And how does the fire company --
23 where does the fire company get its money from
24 to pay for the party?
25 A Fund-raising.
00092
1 Q Did the Town give the fire company
2 any money for the party?
3 A No.
4 Q You said that it was a night out
5 for the women. Could you explain what that
6 means?
7 A We try to basically give a night out for
8 the women maybe every other year just for
9 putting up with our stuff, the time that we're
10 away from home, holidays, parties, stuff like
11 that.
12 Q Is it to show appreciation?
13 A Yes.
14 Q Now, I think you testified in
15 response to Mr. Mullin's questions that you were
16 consuming alcohol --
17 A Yes.
18 Q -- at that function? Do you have
19 a recollection as to whether other people were
20 consuming alcohol?
21 A I'm sure there was; but who, I don't
22 remember who.
23 Q And -- and I'm sorry, my -- my --
24 I -- maybe my last line of inquiry. With regard
25 to the bus --
00093
1 A Correct.
2 Q -- I think you testified in
3 response to Mr. Mullin's question that it was a
4 Town bus that was used?
5 A Yes, it was a Town bus.
6 Q Okay. And how -- how is that
7 arrangement made?
8 A At the time we asked Linda if she can do
9 us a favor and drive us, instead of company
10 paying an extra thousand dollars just to
11 chauffeur everybody back, so there was no
12 drinking and driving going back and forth to the
13 place. And she said sure. And that was
14 basically it.
15 Q Okay. Was the bus lent to you for
16 the night?
17 A Yes.
18 Q And did Linda agree to donate her
19 time?
20 A Yes.
21 Q But you paid her a tip for her
22 services?
23 A I took a collection from the guys for a
24 tip for her.
25 Q What -- what's the -- what's the
00094
1 policy with the Secaucus -- at the Secaucus Fire
2 Department in regards to responding to fire
3 calls when you're drinking?
4 A You're not allowed.
5 Q Okay. Was the company that night
6 on-call?
7 A No.
8 Q When the -- did the company have
9 to get written permission to use the firehouse?
10 A Yes, the Town has that; they have a form
11 you fill out.
12 Q And does the Fire Department allow
13 members of the public to use the firehouse for a
14 function?
15 A Yes, we -- we don't rent it out. We have
16 to be there. So if somebody came to us, a
17 resident came to us, "We need it for a birthday
18 party or communion," that person that takes the
19 firehouse has to fill the form out and has to
20 be there at the time the party is going on until
21 it's set up and cleaned up.
22 Q And did Engine Company Number 2
23 use the same form and pol -- the same form or --
24 I'm sorry, let me ask this way.
25 Did Engine Company Number 2 go through
00095
1 the same procedure as any other citizen in Town
2 would have to go through --
3 A Yes.
4 Q -- in order to use the firehouse
5 for a party?
6 A Yes, the form was filled out.
7 Q And when your engine company asked
8 for permission to use the firehouse for the
9 party that night, what did Engine Company Number
10 2 have to agree to do in terms of fire response
11 or fire coverage?
12 A You weren't allowed to go because of the
13 alcohol. It's just we have a policy with that
14 because of insurance.
15 Q And if there was a fire in the
16 North End, who would have responded that night?
17 A You still have four other companies in
18 Town.
19 Q All right. I have no further
20 questions. Thank you, Mr. Johnson.
21 JUDGE CURRAN: Mr. Mullin.
22 REDIRECT EXAMINATION BY MR. MULLIN:
23 Q Sir, so you say this was kind of,
24 to use an old-fashioned expression, I thought,
25 it is like woman's night out, ladies night out.
00096
1 A Woman's night -- we take the wives out.
2 And at the night out we had presented awards to
3 the members for like a -- their years of service
4 or just like a little recognition in front of
5 the women that were there.
6 Q Well, this was not -- this was an
7 awards night for the company; that was the whole
8 point of the party, right?
9 A It was recognition for their service.
10 Q It wasn't to honor the women or to
11 give them a night out. That's not what this
12 party was for --
13 A Yes, it was.
14 Q -- right? Well, remember I took
15 your deposition?
16 A Yeah.
17 MR. BEVERE: Page and line,
18 please.
19 MR. MULLIN: It's going to start
20 on page 15, line 22.
21 BY MR. BEVERE:
22 Q And there was a court reporter
23 here -- there like there is today right?
24 A Yes.
25 Q You raised your right hand and
00097
1 swore to tell the truth, right?
2 A Yes.
3 Q And then lawyer from my office
4 asked you, "Did you attend a function on the
5 evening of April 24th, 2004?"
6 And you answered, "Yes," right?
7 A Yes.
8 Q And then she asked, "And what
9 function was that?"
10 And you didn't mention anything with
11 about it being night out for the women, right?
12 A No.
13 MR. BEVERE: Judge, can I have --
14 can we have the questions and answers read,
15 please, as opposed to --
16 JUDGE CURRAN: Yes.
17 MR. BEVERE: -- summarizing what
18 was in --
19 MR. MULLIN: This is
20 cross-examining, Your Honor.
21 JUDGE CURRAN: I understand, but
22 it is more complete.
23 MR. MULLIN: Okay.
24 JUDGE CURRAN: And I think it's
25 more relevant and -- and informative for the
00098
1 jury.
2 BY MR. BEVERE:
3 Q The question that was asked to you
4 at that deposition that I was up to, "And what
5 function was that?"
6 And your answer was, "An awards night
7 for the company," right?
8 A Correct.
9 Q And that was the truth, right?
10 A Correct.
11 Q And that was the complete truth,
12 right?
13 A Correct.
14 Q And your question -- the next
15 question was, "And who received awards?"
16 And you said, "Pretty much everybody in
17 the whole company, recognition for job
18 outstandings," right? And that was the truth,
19 right?
20 A Right.
21 Q And you and I can agree that
22 nowhere in that answer did you say, "Well, this
23 was just really a night out for the women,"
24 right? You didn't say that, right?
25 A Right.
00099
1 Q This was a company function,
2 right?
3 A Correct.
4 Q And Miss Lunde didn't lend you her
5 bus, right?
6 A Right.
7 Q Miss Lunde -- the Town of Secaucus
8 loaned you its bus, right?
9 A Correct.
10 Q And you have testified to this
11 jury that bus was worth about a thousand bucks,
12 right? Use of that bus and the use of that
13 driver, that's what you said before?
14 A That's up to a limo company, whatever
15 they charge you.
16 Q Right. And at this party, again,
17 the Mayor was there, right?
18 A Yes.
19 Q The Town Administrator was there,
20 right?
21 A Yep.
22 Q The Fire Chief was there, right?
23 A Yes.
24 Q And on the form that was filled
25 out it said, "Company function," right?
00100
1 A Correct.
2 Q Were you present in the firehouse
3 when Chuck Snyder, Sr. said to Sergeant Amodeo,
4 "I'm on-call"?
5 A No.
6 Q Are you aware that he said that?
7 A No.
8 Q Now you're a captain, right?
9 A Now, I am, yes.
10 Q What rank did you hold at the time
11 of the -- on April 25th, 2004 what rank did you
12 hold?
13 A Lieutenant.
14 Q You were a lieutenant. That's
15 lower than captain, right?
16 A Correct.
17 Q And when did you get promoted to
18 captain?
19 A January.
20 Q January of what year?
21 A '07 -- '08, just past.
22 Q This past year?
23 A Yes, this January.
24 Q And the Town promoted you to
25 captain?
00101
1 A Company.
2 MR. BEVERE: Objection.
3 Q Company did? Did the Town have to
4 approve that promotion by the company?
5 A No.
6 Q Are you familiar with Chapter 12?
7 A No.
8 MR. MULLIN: Okay. I have nothing
9 further.
10 JUDGE CURRAN: Mr. Bevere.
11 MR. BEVERE: Oh, Mr. Mullin -- I
12 didn't hear Mr. Mullin say he was done.
13 JUDGE CURRAN: He said, yes.
14 MR. BEVERE: I have no cross for
15 the witness. I'm sorry, no further questions,
16 thank you.
17 JUDGE CURRAN: Is there anyone on
18 the jury who has a question for this witness?
19 If so, please raise your hand. Anyone on the
20 jury with a question?
21 I see no hands, therefore you may
22 step down, sir.
23 THE WITNESS: Thank you.
24 JUDGE CURRAN: Thank you.
25 (Whereupon, the witness is
00102
1 excused.)
2 JUDGE CURRAN: Ladies and
3 Gentlemen, we will take the morning break now,
4 if you will. I will ask you to be back in about
5 15 minutes at 11:20. Thank you.
6 Off the record.
7 (Whereupon, the jury is excused.)
8 JUDGE CURRAN: We're off the
9 record.
10 (Whereupon, a brief recess is
11 taken.)
12 JUDGE CURRAN: I will note for the
13 record that counsel and the parties are present,
14 the jury is not.
15 Miss Smith.
16 MS. SMITH: Judge, when we took a
17 break I walked outside and saw the three -- the
18 person who just left the witness stand,
19 Mr. Johnson, talking to the two witnesses who
20 are about to take the witness stand. Came in
21 the courtroom and asked counsel to please not
22 have the witnesses speaking to one another.
23 I went to the ladies room and
24 came back down the hallway, and they were still
25 standing there speaking to one another. Counsel
00103
1 wasn't there; they were in the courtroom. So I
2 again said, "Could you please ask the witnesses
3 not to speak to one another?" Mr. Paris said he
4 told them not to talk about the case but he
5 hasn't advised them not to speak to one another.
6 Then I was walking back, after
7 talking to my client; and I saw a gentleman who
8 just left the witness stand, Mr. Johnson,
9 walking down the hall and the next witness, who
10 I believe is Mr. Kickey, the one after this
11 witness, walking down a stairway. They both
12 were holding cell phones, and then Mr. Johnson
13 proceeded to get on a cell phone.
14 JUDGE CURRAN: All right. I will
15 note for the record that I have been in the
16 courtroom. I was here when Miss Smith made her
17 request. I was here when Mr. Paris, I would
18 say, immediately went outside. When Miss Smith
19 came back in, Mr. Paris indicated at that time,
20 although we were off the record -- if you would
21 indicate that --
22 MR. PARIS: Sure.
23 JUDGE CURRAN: -- on the record.
24 MR. PARIS: I went outside and
25 told -- I told Mr. Johnson, I said, "I want to
00104
1 make you aware you are not allowed to talk about
2 your testimony with anyone who may be a witness
3 or potential witness."
4 He said, "No, I understand that."
5 I said, "You can't talk to anyone
6 about your testimony."
7 He says, "Okay, fine. I know
8 that."
9 When I went to the men's room
10 just now -- and I just came back in the court
11 and saw Miss Smith on her feet and the Court
12 ready to go on the record -- on my way back I
13 saw Mr. Johnson at the end of the hall near the
14 elevators on his cell phone. And I said to him
15 again, I said, "Remember, you are not allowed to
16 talk to anyone about your testimony."
17 He said, "I already knew that. I
18 knew" -- I think he used the word "17," like he
19 said, "I have been told that 17 times."
20 I said, "Fine." And I came back
21 into the courtroom.
22 That's what transpired. He was
23 by himself at that point. And I made it clear
24 to him he is not allowed to talk to anyone about
25 his testimony, if they may be a potential
00105
1 witness.
2 I said, "You know, anyone who can
3 be a witness, you can't talk about your
4 testimony."
5 He said, "I know."
6 JUDGE CURRAN: Thank you.
7 MR. PARIS: So I don't understand
8 what the problem is. The sequestration order
9 was that they are not supposed to be able to
10 compare notes regarding their testimony. If
11 they said hello to each other, I don't think
12 that's a violation of anything. That's not a
13 violation of anything. So, you know, that -- I
14 don't -- I just don't see the problem. And we
15 took care of it, counsel's concern.
16 JUDGE CURRAN: Okay. Just so we
17 have a complete record, I would appreciate, Mr.
18 Bevere, if you would put on the record what you
19 said off the record.
20 MR. BEVERE: Oh, sure. I went
21 outside and spoke to Matt Kickey. And I said to
22 Matt, "Go down to the sixth floor," which is
23 where the Prosecutor's Office is -- he doesn't
24 work in that office, but he has access to that
25 office -- "and wait there. And I'll call you
00106
1 when we need you."
2 JUDGE CURRAN: And you said that
3 after Miss Smith came back in?
4 MR. BEVERE: Right, that was
5 afterwards. I didn't know what was going on
6 inside because, as you know, Your Honor, I was
7 in here talking to Mr. Paris, Mr. Drumeler.
8 JUDGE CURRAN: Okay.
9 MR. BEVERE: Now, Judge, what I
10 want -- if you want to question the witnesses as
11 to what, if any, discussions took place, I have
12 no problem with that. I ask it be done outside
13 the presence of the jury.
14 MS. SMITH: Judge, I would like to
15 see their cell phones and see if they spoke on
16 the cell phone.
17 MR. PARIS: To each other?
18 MS. SMITH: Yeah.
19 MR. PARIS: I think the only thing
20 that they need to be questioned about is whether
21 or not they discussed their testimony in this
22 case with anyone who may be a witness or any of
23 the other two, did they discuss their testimony,
24 because that's what this is about. It's not
25 about whether they spoke to each other, and it's
00107
1 not about whether they spoke to each other on a
2 cell phone. It's about whether or not they
3 discussed their testimony. And that's really
4 what we're dealing with.
5 And to go so -- so far as to say,
6 well, did you say hello to the other members of
7 your fire company, I would have expected they
8 would have been sitting around talking to each
9 other. Frankly, we had three policemen who sat
10 here all day yesterday sitting around on the
11 same bench all day.
12 Now, there is no prohibition
13 about them sitting next to each other, talking
14 to each other. They were sequestered. They
15 didn't know what anyone else was going to
16 testify to. They were sequestered after --
17 afterwards. They were specifically told, "You
18 are not to discuss your testimony that's been
19 given with anyone else."
20 So to go so far as to say, "Who
21 are you talking to on your cell phone," they may
22 have been talking to each other. I don't think
23 that that's -- that was not a prohibition. And
24 frankly, if we are going forward, we have a lot
25 of Town employees who are going to -- who are
00108
1 going to testify in this case; and there was
2 never a prohibition about them talking. They --
3 they work together. I -- I think this is going
4 so far afield in terms of sequestration.
5 JUDGE CURRAN: Okay. Just because
6 the issue has come up, I am going to ask if you
7 would please be kind enough to get Mr. Kickey
8 back. And we will bring Mr. Johnson in first.
9 Obviously, we would do this outside the hearing
10 of the jury.
11 In regard to the cell phones,
12 frankly, I don't think looking at the cell
13 phones is necessarily dispositive; but the
14 request is on the record. I don't see that
15 there is any problem. If there is a call just
16 within the last half hour from Mr. Johnson to
17 Mr. Kickey or Mr. Kickey to Mr. Johnson, it at
18 least raises the inference that -- if they were
19 talking about friends or the weather or sports,
20 there would be no reason to necessarily do that
21 on their cell phone. I will reach that bridge
22 when we get to it.
23 MR. PARIS: I will go see if
24 Mr. Johnson is here.
25 JUDGE CURRAN: Miss Hawks, I am
00109
1 going to ask you -- you have been so helpful to
2 us. This is the first time Miss Hawks has ever
3 worked here, over here. She has been really
4 terrific. What does Mr. Kickey look like?
5 MR. BEVERE: He is short. He has
6 dark hair. He is skinny, red -- he had a red
7 tie and blue suit.
8 JUDGE CURRAN: If you could watch
9 for him and keep him out there because we will
10 do Mr. Johnson first. Thank you very much.
11 MS. HAWKS: No problem.
12 (Whereupon, Mr. Johnson re-takes
13 the stand.)
14 JUDGE CURRAN: Go back on the
15 record, please. Thank you, sir. Please give us
16 your name for the record again.
17 THE WITNESS: Richard Michael
18 Johnson.
19 JUDGE CURRAN: Thank you, sir. I
20 am required to tell you you are still under
21 oath.
22 THE WITNESS: Okay, yes.
23 JUDGE CURRAN: Counsel have any
24 objection if I ask the questions?
25 MS. SMITH: No.
00110
1 MR. BEVERE: None.
2 JUDGE CURRAN: Mr. Johnson, when
3 you left the courtroom just now after you
4 testified, to whom did you talk out in the
5 hallway?
6 THE WITNESS: I was just talking
7 to Danny and Matt.
8 JUDGE CURRAN: Just tell me their
9 last names. Matt Kickey?
10 THE WITNESS: Yes, and Snyder.
11 JUDGE CURRAN: Snyder. Okay. And
12 what did you discuss?
13 THE WITNESS: Nothing. Me and
14 Danny are going golfing this afternoon. That's
15 about it.
16 JUDGE CURRAN: So that's all you
17 talked about?
18 THE WITNESS: Yes.
19 JUDGE CURRAN: Did you talk at all
20 about the case?
21 THE WITNESS: No.
22 JUDGE CURRAN: Why not?
23 THE WITNESS: Because I'm not
24 supposed to. I was told in the attorney's
25 office numerous times not to.
00111
1 JUDGE CURRAN: Okay. Did they ask
2 you anything --
3 THE WITNESS: No.
4 JUDGE CURRAN: -- either one of
5 them, about the case?
6 THE WITNESS: No.
7 JUDGE CURRAN: No, not even, "How
8 did it go?" "How did you do?"
9 THE WITNESS: No.
10 JUDGE CURRAN: And then what did
11 you do then? What happened? You were talking
12 with them?
13 THE WITNESS: I made a phone call.
14 JUDGE CURRAN: Okay. And to whom
15 did you speak, or who did you call?
16 THE WITNESS: My girlfriend. And
17 then I called one of my friends -- his mom
18 passed away this morning --
19 JUDGE CURRAN: Okay.
20 THE WITNESS: -- to find out the
21 arrangements.
22 JUDGE CURRAN: And you made those
23 calls out in the hallway?
24 THE WITNESS: Yes.
25 JUDGE CURRAN: If you would be
00112
1 kind enough -- do you have your cell phone?
2 THE WITNESS: Yes.
3 JUDGE CURRAN: If you would be
4 kind enough to hand that to Mr. Bevere so that,
5 if you don't mind, he can just look at the phone
6 numbers you called. And then he will discuss
7 those with Plaintiffs' counsel.
8 THE WITNESS: Want me show you how
9 to do it?
10 MR. BEVERE: Who is that?
11 THE WITNESS: My granddaughter.
12 MR. BEVERE: Granddaughter?
13 THE WITNESS: No, my girlfriend's
14 granddaughter. Just --
15 JUDGE CURRAN: You look very young
16 to be involved with grandchildren. I have to
17 say that for the record.
18 MR. MULLIN: Were you saying that
19 to me, Your Honor?
20 JUDGE CURRAN: No -- yes, yes.
21 MR. MULLIN: Thank you.
22 THE WITNESS: The top one is
23 Barney. His name is Dave Taglieri. That is the
24 one his mom passed away this morning or late
25 last night.
00113
1 And Laurie's work is this
2 morning, just before Laurie. That's my
3 girlfriend.
4 JUDGE CURRAN: We will give you
5 equal time to show --
6 MR. BEVERE: Same phone as I have,
7 Judge; I don't know why I have such trouble
8 working it.
9 JUDGE CURRAN: We will give you
10 time to show us pictures of your daughter.
11 THE WITNESS: As soon as you hit
12 the "Send" button it shows you the last two
13 calls. Shows you what the downtime was.
14 JUDGE CURRAN: Any additional
15 questions, Miss Smith or Mr. Mullin?
16 MS. SMITH: No.
17 JUDGE CURRAN: Any additional
18 questions?
19 MS. SMITH: Does -- is Barney a
20 firefighter or --
21 THE WITNESS: No --
22 MS. SMITH: -- does he live in
23 Secaucus?
24 THE WITNESS: -- he lives down the
25 shore.
00114
1 MS. SMITH: No, thank you, Your
2 Honor.
3 JUDGE CURRAN: Any additional
4 questions, Mr. Bevere or Mr. Paris?
5 MR. PARIS: No, Your Honor.
6 MR. BEVERE: The only question,
7 just something Mr. Johnson has said right now.
8 Mr. Johnson, you never came to my
9 office and spoke to me, right?
10 THE WITNESS: No.
11 MR. BEVERE: I thought you had
12 said that --
13 THE WITNESS: I was at Mr.
14 McMullin's office in Montclair.
15 MR. BEVERE: You are talking about
16 the time you went to his office?
17 THE WITNESS: Yes, they told me I
18 wasn't allowed to speak of the case or whatever.
19 MR. BEVERE: Thank you.
20 JUDGE CURRAN: Any other questions
21 for this individual?
22 MR. MULLIN: No other questions.
23 MS. SMITH: No, thank you.
24 JUDGE CURRAN: Thank you, sir.
25 You may step down, thank you.
00115
1 If you will please ask Mr. Kickey
2 to come in. He is outside with court personnel.
3 Thank you.
4 (Whereupon, the witness is
5 excused.)
6 MR. BEVERE: Are we getting him?
7 JUDGE CURRAN: No, he is going to
8 ask him. And John is going to oversee, as I am
9 guessing.
10 (Whereupon, Mr. Kickey takes the
11 stand.)
12 THE WITNESS: Good morning, Your
13 Honor.
14 JUDGE CURRAN: Good morning.
15 Please put your left hand on the Bible and raise
16 your right hand.
17 M A T T H E W K I C K E Y, is duly sworn by a
18 Notary Public of the State of New Jersey
19 And testifies under oath as follows:
20 JUDGE CURRAN: Thank you, sir.
21 You are under oath. All your testimony must be
22 truthful and accurate to the best of your
23 ability. Do you understand?
24 THE WITNESS: Yes, Your Honor.
25 JUDGE CURRAN: Thank you. Please
00116
1 give us your full name for the record and spell
2 your last name.
3 THE WITNESS: Matthew Kickey,
4 K-i-c-k-e-y.
5 JUDGE CURRAN: Thank you. And
6 what is your address?
7 THE WITNESS: My address is 25
8 Arn, A-r-n, Terrace, Secaucus, New Jersey.
9 JUDGE CURRAN: Thank you. Sir, I
10 am going to ask you some questions. You have
11 been waiting outside for fair amount of hours
12 this morning in order to testify; is that
13 correct?
14 THE WITNESS: Yes.
15 JUDGE CURRAN: And in the last
16 half hour with whom were you talking outside?
17 THE WITNESS: I wasn't talking to
18 anybody, Your Honor.
19 JUDGE CURRAN: In last half hour
20 you didn't speak to anybody?
21 THE WITNESS: Other than saying
22 hello and about the Met game last night to
23 Danny, that was it.
24 JUDGE CURRAN: Danny being?
25 THE WITNESS: Snyder.
00117
1 JUDGE CURRAN: Okay.
2 THE WITNESS: Other than that, we
3 were sitting apart and didn't talk.
4 JUDGE CURRAN: Okay. And
5 Mr. Paris didn't go out and talk to you?
6 MR. PARIS: I didn't talk to him.
7 In fact, I never met him. So I spoke to
8 Mr. Johnson --
9 JUDGE CURRAN: Okay.
10 MR. PARIS: -- about talking --
11 JUDGE CURRAN: I'm sorry.
12 MR. PARIS: -- his testimony with
13 anyone.
14 JUDGE CURRAN: All right. Did you
15 speak to Mr. Johnson? Do you know Mr. Johnson.
16 THE WITNESS: Yes, I do.
17 JUDGE CURRAN: Did you speak to
18 him at all?
19 THE WITNESS: No, I did not.
20 JUDGE CURRAN: Not even to say
21 hello?
22 THE WITNESS: Just, "Hello, good
23 morning." That was it.
24 JUDGE CURRAN: Okay. All right.
25 Did you discuss anybody's testimony in regard to
00118
1 this case?
2 THE WITNESS: No, I didn't.
3 JUDGE CURRAN: Anybody who has
4 testified or is going to testify?
5 THE WITNESS: No, I did not.
6 JUDGE CURRAN: Okay. Any
7 follow-up questions? I will get to the cell
8 phone. Any follow-up questions to this part.
9 MR. MULLIN: Not to what you
10 asked.
11 JUDGE CURRAN: Sir, do you have a
12 cell phone with you?
13 THE WITNESS: Yes, I do.
14 JUDGE CURRAN: Would you be kind
15 enough to hand it to Mr. Bevere. Did you use
16 the cell phone in the last half hour?
17 THE WITNESS: Yes, I did.
18 JUDGE CURRAN: Whom did you call?
19 THE WITNESS: My supervisor and my
20 father.
21 JUDGE CURRAN: And who is your
22 supervisor?
23 THE WITNESS: From the county
24 Prosecutor's Office, Rob DeVoy.
25 JUDGE CURRAN: So you still work
00119
1 at the Prosecutor's Office?
2 THE WITNESS: Yes, I do.
3 JUDGE CURRAN: What is your
4 position there?
5 THE WITNESS: Detective.
6 JUDGE CURRAN: Okay. Thank you.
7 MR. BEVERE: Judge, he needs to do
8 this for me.
9 THE WITNESS: I turned it off.
10 JUDGE CURRAN: If you will show
11 the calls just made.
12 THE WITNESS: I also spoke to my
13 girlfriend, just to let her know I was still in
14 court.
15 JUDGE CURRAN: Can you tell us the
16 phone numbers that you --
17 MR. BEVERE: He will show me the
18 screen, Judge; and I'll show it to Miss Smith.
19 THE WITNESS: That was you that
20 called me. This is my girlfriend at 11:18.
21 This is my supervisor. My father. And that was
22 you at 9:00 this morning.
23 MR. BEVERE: Okay. Judge, I'm
24 going to -- for the record, there are two
25 calls -- well, no, I'm sorry, we are talking at
00120
1 11:12 a.m. Trying to remember what time
2 Mr. Johnson ended.
3 JUDGE CURRAN: Mr. Johnson ended
4 about 11.
5 MR. BEVERE: Okay. 11:12. First
6 call, 11:12 a.m., Dad. Lurch? Who is Lurch?
7 THE WITNESS: That would be my
8 supervisor.
9 MR. BEVERE: Your supervisor's
10 name is Lurch?
11 THE WITNESS: Yes, he is
12 6-foot-something.
13 MR. BEVERE: All right. We are
14 all showing our age, I guess, Judge.
15 Grace?
16 THE WITNESS: That is my
17 girlfriend. Just letting her know I was still
18 at court.
19 MR. BEVERE: Okay. And
20 (201)452-6258 is me.
21 THE WITNESS: That was him letting
22 me know to come upstairs.
23 MR. BEVERE: Letting him know to
24 come back upstairs.
25 MS. SMITH: Can I have that?
00121
1 MR. BEVERE: Sure.
2 JUDGE CURRAN: Any follow-up
3 questions, Mr. Mullin or Miss Smith?
4 MS. SMITH: No, thank you, Your
5 Honor.
6 JUDGE CURRAN: Mr. Bevere any
7 follow-up questions?
8 MR. BEVERE: No, Judge, thank you.
9 THE WITNESS: Your Honor, I could
10 turn it back off?
11 JUDGE CURRAN: Yes, you may.
12 Thank you.
13 MR. BEVERE: Just that, you know,
14 I assume my cell phone number won't be widely
15 disseminated.
16 MS. SMITH: I got it now.
17 MR. MULLIN: I already put it on
18 the internet.
19 JUDGE CURRAN: Tracey will --
20 so --
21 MR. BEVERE: I can give my Social
22 Security number while we're at it.
23 JUDGE CURRAN: Right.
24 Have you talked to anybody about
25 your -- other than if you were at a deposition
00122
1 or if you were meeting with attorneys for the
2 Town or if you at one point had a personal
3 attorney, have you talked to anyone about your
4 testimony here today?
5 THE WITNESS: No, I have not.
6 JUDGE CURRAN: Have you talked to
7 anyone about any other witnesses, whether they
8 have testified or going to testify --
9 THE WITNESS: No, I have not.
10 JUDGE CURRAN: -- here about your
11 testimony?
12 THE WITNESS: No, I have not.
13 JUDGE CURRAN: Any other
14 questions?
15 MS. SMITH: No, thank you, Your
16 Honor.
17 JUDGE CURRAN: Shall we leave the
18 witness in the witness box?
19 MR. MULLIN: No, I am doing
20 Mr. Snyder next.
21 MR. BEVERE: Do you want to talk
22 to --
23 JUDGE CURRAN: Oh.
24 MR. BEVERE: Did you want to talk
25 to Mr. Snyder?
00123
1 MR. MULLIN: We might as well hear
2 from Mr. Snyder.
3 MR. BEVERE: Just so we're
4 complete.
5 JUDGE CURRAN: I apologize, thank
6 you. I thought we were going --
7 MR. BEVERE: Step into the
8 hallway.
9 JUDGE CURRAN: Thank you.
10 MR. MULLIN: You know what, no, so
11 it's not an issue with Mr. Snyder, according to
12 what I'm told.
13 MS. SMITH: He was in here.
14 JUDGE CURRAN: That's what I
15 thought. And there was no telephone call or --
16 MR. BEVERE: I am not trying to --
17 I am certainly not trying to make an issue where
18 there is none.
19 JUDGE CURRAN: Thank you.
20 MR. BEVERE: Far be it from me.
21 JUDGE CURRAN: This witness may
22 step down, and Mr. Snyder will come in.
23 Thank you.
24 Thank you, sir.
25 THE WITNESS: You're welcome.
00124
1 Thank you.
2 MR. MULLIN: I will do this
3 witness after --
4 MR. BEVERE: Judge.
5 JUDGE CURRAN: Thank you. We are
6 off the record.
7 (Whereupon, a discussion is held
8 off the record.)
9 JUDGE CURRAN: We will bring out
10 the jury, please. Thank you very much, Miss
11 Hawks.
12 MS. HAWKS: You're welcome.
13 MR. BEVERE: Can I have him take
14 the stand, Your Honor?
15 JUDGE CURRAN: Sorry.
16 MR. BEVERE: Can he take the
17 stand?
18 JUDGE CURRAN: Yes. Is that okay?
19 MR. BEVERE: Yeah, it's fine. I
20 have no objection to that. Otherwise, he is
21 blocking.
22 JUDGE CURRAN: Whose water is
23 that?
24 MR. BEVERE: Is that your bottle?
25 THE WITNESS: Yeah.
00125
1 MR. BEVERE: Is he allowed to have
2 the bottle?
3 JUDGE CURRAN: Yes.
4 MS. HAWKS: One of the jurors is
5 in the restroom.
6 MR. BEVERE: Then I will go --
7 JUDGE CURRAN: We can go off the
8 record. You may step down.
9 (Whereupon, a discussion is held
10 off the record.)
11 MS. HAWKS: Jurors are
12 approaching.
13 (Whereupon, the jury is brought
14 into the courtroom.)
15 JUDGE CURRAN: Good afternoon.
16 We're recording still. Thanks.
17 Ladies and Gentlemen, we had some
18 matters that had to be put on the record outside
19 the hearing of the jury.
20 MS. HAWKS: Raise your right hand
21 and place your left hand on the Bible.
22 D A N I E L W. S N Y D E R, is duly sworn by a
23 Notary Public of the State of New Jersey.
24 And testifies under oath as follows:
25 MS. HAWKS: Thank you. For the
00126
1 record, please state your full name and spell
2 your last name, please.
3 THE WITNESS: Daniel William
4 Snyder, S-n-y-d-e-r.
5 MS. HAWKS: Thank you.
6 JUDGE CURRAN: Thank you, sir. If
7 you will please give us your home address.
8 THE WITNESS: Fourteen Kroll
9 Terrace, K-r-o-l-l.
10 JUDGE CURRAN: Thank you.
11 Your witness.
12 MR. MULLIN: Thank you, Your
13 Honor.
14 DIRECT EXAMINATION BY MR. MULLIN:
15 Q Your name is Daniel Snyder, right?
16 A Correct.
17 Q And who is your father?
18 A My father is Charles Snyder.
19 Q And what's his middle initial?
20 A F.
21 Q And Charles F. Snyder, is he --
22 does he hold any positions with the Town of
23 Secaucus, your father?
24 A Yeah, he is -- I believe he is a
25 superintendent of the Buildings & Grounds.
00127
1 Q And you have some brothers?
2 A Yes, two.
3 Q And you have a brother Chris and a
4 brother Charles, Jr.; is that right?
5 A Correct.
6 Q And Charles, Jr. is currently the
7 battalion chief of the Secaucus Fire Department;
8 is that right?
9 A Yes.
10 Q And does Chris hold any position
11 in the Fire Department of Secaucus?
12 A Yes, he is lieutenant --
13 Q He is a lieutenant?
14 A -- of our firehouse.
15 Q And do you know when Chris Snyder
16 became a lieutenant?
17 A About, I think, around two years ago.
18 I'm not sure exactly when.
19 Q So we're in 2008. Around 2006?
20 A Yeah, I believe 2006.
21 Q And sir, have you been in the
22 Secaucus Fire Department for some years?
23 A Yes, I have.
24 Q Can you tell us when you started
25 in the Secaucus Fire Department?
00128
1 A I'm not sure of the exact date. I would
2 say 1997.
3 Q Around '97?
4 A Yes.
5 Q And are you in the Secaucus Fire
6 Department today?
7 A Yes, I am.
8 Q And have you been in the Secaucus
9 Fire Department continually from 1997 to today?
10 A Yes, I have.
11 Q Okay. And your brother Charles
12 Snyder, Jr. is in line now to become the Chief
13 of the Secaucus Fire Department, right?
14 A Yes.
15 Q And what is -- did I ask you this?
16 I apologize, it's getting a little late in the
17 day. What is your current title with the Fire
18 Department?
19 A Just firefighter.
20 Q You have been and remain a
21 firefighter, right?
22 A I was lieutenant at one point.
23 Q Okay. I believe that at times you
24 have work part-time for the Secaucus Department
25 of Public Works; is that right?
00129
1 A Yes, when I was in high school.
2 Q In high school. But other than
3 that you don't work for the Town of Secaucus
4 outside any duties you have with the Fire
5 Department, right?
6 A That's correct.
7 Q Now, while you've been a Secaucus
8 firefighter, the Fire Department has never given
9 you any training with regard to harassment or
10 discrimination, true? Let me put it this way.
11 I am going to rephrase the question.
12 Before April 25th, 2004 the Secaucus
13 Fire Department had not given you any training
14 with respect to harassment or discrimination,
15 right?
16 A Correct.
17 Q After the April 2004 incident you
18 were asked to attend some sort of sexual
19 harassment seminar; do you recall that?
20 A Yes.
21 Q Do you recall that some firemen
22 refused to attend that seminar?
23 A I don't recall that.
24 Q Did you refuse?
25 A No, I did not.
00130
1 Q Okay. You attended it?
2 A Yes.
3 Q But that's after April 25th, 2004,
4 right?
5 A Yes.
6 Q Okay. Now, you concede, don't
7 you, that at times you've gotten drunk at the
8 firehouse, right?
9 A Yes.
10 Q Sometimes you have gotten drunk at
11 firehouse parties, right?
12 A Yes.
13 Q By "the firehouse" I am referring
14 to the North End Firehouse in Secaucus.
15 A That's more accurate, at parties, yes.
16 Q And you had gotten drunk at the
17 North End Firehouse, right --
18 A Correct.
19 Q -- at times? Okay. You went to
20 some sort of function on the night of
21 April 24th, 2004; is that right?
22 A Yes.
23 Q And you -- before the -- before
24 you left for a restaurant in connection with
25 that function you -- you and other firemen at
00131
1 the North End Firehouse gathered at the
2 firehouse, right?
3 A Yes.
4 Q Had some drinks at the firehouse,
5 right?
6 A Yes.
7 Q And you took a bus to some
8 restaurant, right?
9 A Yes.
10 Q And you drank there at the -- at
11 the restaurant, right?
12 A Yes.
13 Q And you're under the belief that
14 approximately 15 of the North End firefighters
15 were there with spouses or whatever, right?
16 A Right, right, 15 members.
17 Q Fifteen members of the firehouse.
18 And then you took -- you, the fire company, took
19 the bus back to the firehouse, right?
20 A Yes.
21 Q And your recollection was that you
22 got back to the firehouse somewhere around
23 midnight; is that right?
24 A Yeah, as far as I could remember, yes.
25 Q Now, you were approached by the
00132
1 Secaucus Police Department sometime after
2 April 25th, 2004 with respect to the Police
3 Department wanting you to come in and talk to
4 them, right?
5 A Yes.
6 Q And you refused to come in and
7 talk to the Secaucus Police Department, right?
8 A Yes.
9 Q And the Fire Department has never
10 fired you from the Fire Department force because
11 of that refusal to cooperate with the police,
12 right?
13 MR. BEVERE: Objection. Can we
14 come -- be heard at sidebar?
15 JUDGE CURRAN: Sure.
16 (Whereupon, the following sidebar
17 discussion is held.)
18 MR. BEVERE: I'm not going to
19 belabor the issue because I think we have gone
20 through it. I just want my objection to
21 be clear for the record. This is -- this is an
22 issue that is still unresolved in this case as
23 to whether or not the Town had the authority to
24 fire somebody for refusing to cooperate with a
25 police investigation. I want -- I want my
00133
1 objection to be clear that this is still an
2 outstanding issue.
3 And at the end of the day, if the
4 issue is resolved in my favor, I am going to ask
5 for a limiting instruction as to these
6 questions.
7 MR. MULLIN: Your Honor, I don't
8 know what the evidential objection is because I
9 haven't heard reference to an evidence rule; but
10 let me say this. I have already shown this jury
11 a document that's going into Evidence where the
12 Chief of the Police Department of Secaucus
13 terminated the employment of this man's brother
14 for two reasons that were in writing. One is
15 for refusing to cooperate with the -- with the
16 police investigation. The other was for being
17 president -- present at the incident. So I have
18 shown beyond the shadow of a doubt that the Town
19 had the power and right to terminate -- to
20 terminate under this.
21 Now, sometimes counsel goes to a
22 more complicated issue. Counsel told this Court
23 that there was a statute that absolutely
24 prohibited a Town from terminating someone
25 because they took the Fifth, a separate issue.
00134
1 Then I showed you the statute that said the
2 literal opposite.
3 MR. BEVERE: Which I disagree
4 with.
5 MR. MULLIN: That statute said the
6 Town has a duty, obligation, shall fire someone,
7 a Town employee, who takes the Fifth; but they
8 have to afford them certain procedures. And I
9 think Your Honor is familiar with that. I won't
10 belabor that now.
11 But I have record, evidence,
12 written document from the Chief of Police
13 showing the Town had the power to terminate the
14 employment of an employee for refusing to
15 cooperate with this specific investigation.
16 So it's -- I haven't heard an
17 evidential objection. I heard a theoretical
18 analysis. But it's relevant, appropriate. Goes
19 to the deliberate indifference of a Town that
20 allows men like this to -- who refused to
21 cooperate, who were present at the incident to
22 continue to serve on this Fire Department and
23 allowed them, more specifically, to be there
24 day-to-day while my client had to live in that
25 house as a prisoner in his own house. It's
00135
1 highly relevant to the issue of deliberate
2 indifference, Your Honor.
3 MR. BEVERE: For the basis of the
4 evidential objection, my basis of my evidential
5 objection is on a relevance and prejudicial
6 grounds of irrelevant and whatever small
7 probative value is highly prejudicial. That is
8 my evidential objection.
9 The memo, what Mr. Mullin is
10 relying upon with regard to Snyder, Sr. --
11 Snyder, Jr. being employed as a per diem
12 employee at the Police Department, he was not
13 fired from his position. And there were reasons
14 stated in the memo by the Chief that went beyond
15 simply refusing to cooperate.
16 He said that because you have a
17 potential involvement, we can't have -- you're a
18 911 dispatcher. We can't have -- be accused of
19 having 911 calls being compromised. And that
20 was clear in his memo. So as to whether or not
21 the Chief's refusal to assign someone per diem
22 hours until the criminal investigation is
23 resolved could be equated with the Town firing,
24 taking disciplinary action, when the Chief
25 clearly states that a basis for that is the
00136
1 integrity of the 911 call process, we can agree
2 to disagree on that.
3 My objection as to relevance, the
4 prejudicial to Mr. Mullin, I have an absolute
5 completely different reading of what that
6 statute says and as to whether we have the
7 authority to give use immunity from what they
8 say. That statute says the Attorney General or
9 someone from the State Board of Investigation,
10 the prosecuting attorney. I am not the
11 prosecuting attorney. I can't give the
12 immunity.
13 I stand by that. But my basis
14 for this point in time is on relevance and
15 probative value. A probative value and
16 prejudicial effects, those would be my
17 objections at this point.
18 JUDGE CURRAN: Anything else,
19 Mr. Mullin?
20 MR. MULLIN: No, I am -- don't let
21 my silence be interpreted -- what everything
22 being said, I have strong disagreement. This is
23 highly relevant. This is central to the case.
24 Town's failure to take action against these
25 firemen is central to this case. It is what
00137
1 deliberate indifference looks like.
2 JUDGE CURRAN: What I'm going to
3 do is to sustain the objection in that I'm going
4 to ask you to rephrase the question because I
5 think it is still an open issue in this case as
6 to whether or not a, quote, employment of his
7 brother as a Police dispatcher is the same as
8 this Snyder's affiliation with the volunteer
9 Fire Department. So I am going to ask you not
10 to use the word "fire," which does indicate an
11 employee-employer relationship. You can use
12 "discharge." You can use --
13 MR. MULLIN: Terminated?
14 JUDGE CURRAN: -- "terminate,"
15 whatever.
16 MR. MULLIN: Okay. I understand.
17 JUDGE CURRAN: But I will note
18 your objection.
19 MR. BEVERE: Thank you. Thank
20 you, Judge.
21 (Whereupon, sidebar discussion is
22 concluded.)
23 BY MR. MULLIN:
24 Q Sir, did the Fire Chief terminate
25 your relationship as a firefighter with the
00138
1 Secaucus Fire Department as a result -- because
2 of your refusal to cooperate with the police in
3 this investigation?
4 A No.
5 Q Did the Mayor acting with the Town
6 Council terminate your relationship as a
7 firefighter with the Fire Department of Secaucus
8 as a result of your refusal to cooperate with
9 this police investigation?
10 A No.
11 Q Same question as the Town
12 Administrator?
13 A No.
14 Q When you came back from the party
15 you and other members of the company got off a
16 bus that had been loaned to you by the Town,
17 right?
18 A I'm not sure if it was loaned to us, but
19 we were on the bus.
20 Q You were on a bus?
21 A On a bus.
22 Q Took you to the party, right?
23 A Correct.
24 Q You made your way -- you, this
25 group that was at the party, made their way
00139
1 through the parking lot, right --
2 A Right.
3 Q -- of the firehouse, right?
4 A Right.
5 Q Now, at some point you heard
6 somebody requesting that the firefighters keep
7 it quiet, right, keep it quiet? Something to
8 that effect, right?
9 A I don't know if that was the exact -- I
10 heard -- I heard something in a negative
11 demeanor, I guess you could say.
12 Q Negative demeanor?
13 A No, negative demeanor, just a negative
14 voice, like little louder.
15 Q Oh, negative demeanor?
16 A Right.
17 Q But it wasn't yelling, was it?
18 A No.
19 Q This voice did not yell, right?
20 A No.
21 Q In fact, you heard a voice that
22 wasn't yelling say something like, "Go home.
23 It's late," right?
24 A Like I said, I can't remember specifics
25 of what was said; but something in that area,
00140
1 yes.
2 Q Would it help refresh your
3 recollection if I showed you your deposition
4 testimony and you got a chance to look at it?
5 A Sure.
6 MR. MULLIN: And this will be page
7 44.
8 Q And just for the record, you
9 remember that you came to the offices of Mr.
10 Bevere's firm -- excuse me, Chasan, Leyner &
11 Lamparello?
12 A Right.
13 Q And there you were deposed?
14 Questions were asked of you and you gave
15 answers?
16 A Yes.
17 Q And you were under oath, right?
18 A Right.
19 Q And the question that was asked on
20 page 44, line 13 was, "You heard yelling coming
21 from 988 Schopmann?" You see a lawyer asked you
22 that question?
23 And your answer was, "Not so much
24 yelling," right?
25 A Right.
00141
1 Q "But more like -- it's tough to
2 explain. Like, 'Go home. It's late,' something
3 to that effect. I don't remember exactly what
4 was said, like I said, but something like, 'Go
5 home. It's late. It's after 1:00,'" right?
6 A Right.
7 Q And that's what you testified and
8 that was the truth, right?
9 A Right.
10 Q And the next question was, "Did
11 you hear anything at all shouted from the
12 firefighter side?"
13 And your answer was?
14 A No.
15 Q So what you are telling this jury
16 is you were, I guess, crossing the parking lot
17 when you heard somebody say -- somebody say
18 words to the effect, "It's late. It's after
19 1:00. Go home," right?
20 A Right.
21 Q And then you're telling this jury
22 you didn't hear the firefighters say anything
23 back, right?
24 A That's correct.
25 Q You didn't hear them scream -- you
00142
1 didn't hear the firefighters scream horrible and
2 ugly, antigay statements to these firefighters?
3 A No, I did not.
4 Q You didn't participate in that?
5 A No, I did not.
6 Q Now, in the parking lot at that
7 moment was your -- your father, right, Chuck
8 Snyder, Sr.?
9 A No.
10 Q You're saying he wasn't there?
11 A Not in the parking lot.
12 Q Not in the parking lot? Was he
13 ever in the parking lot?
14 A Not that I'm aware of.
15 Q How about your brother, Chuck
16 Snyder, Jr.; was he in the parking lot at that
17 moment?
18 A I believe he was.
19 Q How about Charles Mutschler; was
20 he in the parking lot at that moment?
21 A No, I don't remember seeing him.
22 Q You don't remember seeing him.
23 How about Richie Johnson; was he in the parking
24 lot at that moment?
25 A I don't remember seeing him either.
00143
1 Q You are not saying you didn't see;
2 him you are just saying you don't remember
3 seeing him?
4 A Exactly.
5 Q You are not saying you didn't see
6 Charles Mutschler; you are saying you don't
7 remember seeing him?
8 A I don't remember seeing him.
9 Q And I guess you never saw a bunch
10 of firefighters jump up on the fence next to 988
11 Schopmann, grab it and rock it back and forth as
12 if to break it down? You didn't see that, did
13 you?
14 A No.
15 Q And you're under oath today,
16 right?
17 A Yes.
18 Q You didn't hear something that
19 sounded like a gunshot, did you?
20 A No.
21 Q You didn't hear someone banging on
22 the side of 988 Schopmann, did you?
23 A No.
24 Q You didn't hear someone banging on
25 the side of that house yelling,
00144
1 "Homo, homo, homo, homo"? That you didn't hear,
2 right?
3 A No.
4 Q You didn't hear firemen at that
5 moment gathered at the side of the parking lot
6 that abuts 988 Schopmann admitting that they had
7 been the ones that had thrown used condoms over
8 on the porch of 988 Schopmann? You didn't hear
9 that, did you?
10 A No.
11 Q And did you throw used condoms
12 over on the porch of 988 Schopmann?
13 A No.
14 Q And I suppose you have no idea who
15 threw used condoms over on the porch of 988
16 Schopmann?
17 A No.
18 Q No clue, right?
19 A No.
20 Q Are you aware that various people
21 who lived in the area of the firehouse who,
22 unrelated to Mr. Carter and Mr. deVries, called
23 911 that night to express grave concern about
24 what was happening at the firehouse at the
25 moment we're talking about here? Are you aware
00145
1 of that?
2 A I'm aware of that.
3 Q Are you aware that a woman named
4 Patricia Hjelm called in to 911 and expressed
5 shock at the anger and venom that she was
6 hearing coming from the firehouse parking lot?
7 Are you aware of that?
8 A No.
9 Q Are you aware that another person
10 who lived in that area, named Dee Bardini,
11 called in and said she -- she heard what sounded
12 like shots and she was so frightened, she
13 dropped to her knees and called 911? Are you
14 aware of that?
15 A No.
16 MR. BEVERE: Judge, I am going to
17 object because the 911 tape was played and the
18 911 tape speaks for itself. And I don't think
19 Mr. Mullin should be characterizing what that
20 911 tape said.
21 JUDGE CURRAN: What is the
22 specific objection?
23 MR. BEVERE: That it
24 mischaracterizes the nature of the 911 tape.
25 Miss Bardini testified in court. Mr. Snyder was
00146
1 a sequestered witness. He would have no idea
2 what she said when she was testifying in court.
3 MR. MULLIN: I am not asking what
4 she testified in court. I am asking if he is
5 aware that she called 911 and said things to
6 this effect.
7 MR. BEVERE: But the 911 call is
8 played for this jury. Nowhere in the 911 call
9 did she say she dropped to her knees. That was
10 a statement that was made in court, not on the
11 911 call. This was a sequestered witness who
12 was specifically instructed not to discuss
13 testimony of any other witnesses in the case.
14 JUDGE CURRAN: Anything else?
15 Otherwise I will sustain it.
16 MR. MULLIN: As to the dropping
17 down to the knees? Okay.
18 JUDGE CURRAN: Right, as to the
19 dropping down of the knees. That's why I
20 specifically asked him.
21 MR. BEVERE: Yes, Judge, I
22 apologize.
23 MR. MULLIN: Let me not mention
24 that.
25 JUDGE CURRAN: Or you can rephrase
00147
1 it.
2 MR. MULLIN: I will rephrase it.
3 BY MR. MULLIN:
4 Q Are you aware that someone who
5 lived near the firehouse named Dee Bardini
6 called 911 and told them she heard something
7 that sounded like gunshots coming from the area
8 of the firehouse parking lot?
9 A I was aware that she called 911. I
10 wasn't aware of what the -- what conversation
11 took place.
12 Q Sir, we have what I can only call
13 a bad photograph from a newspaper that's marked
14 as Plaintiff's Exhibit 121.
15 I'm going to ask you, sir, if you would
16 just step off the stand for a minute because for
17 the record I want to identify this.
18 Sir, it's a bad picture; and it's from
19 the -- you see it's from the Secaucus Home News,
20 June 10th, 2004?
21 A Right.
22 Q And it says here, "The officers
23 and members of Rescue 1, Engine 2 Firehouse in
24 the North End recently celebrated 275 years of
25 collective service at a recognition dinner held
00148
1 in Cliffside Park." Sir, is that what -- what
2 was going on at the restaurant at Cliffside Park
3 on the late night of April 24th, 2004?
4 A I'm not sure what the --
5 Q Were you at that party?
6 A Yeah, I was at that party. Right there.
7 Q And really what I want you to do
8 is, if you can, just -- do you remember when
9 this photograph was taken?
10 A Yes.
11 Q And you're in this photograph,
12 right?
13 A Yes.
14 Q And can you, for the jury, because
15 the picture is so bad, just identify who these
16 people are? And if you can just state what
17 their relationship was to the North End -- the
18 folks -- the companies in the North End
19 Firehouse? Who is this individual? I will
20 start with the far left?
21 A That's Charles Mutschler.
22 Q Charles Mutschler. And right next
23 to him to his right?
24 A Harry Backiel.
25 Q And these are firemen, fire --
00149
1 A Yes.
2 Q And this individual, the third one
3 from the left?
4 A I can't really make out who that is.
5 Q Can you look at the names?
6 A That's Kevin.
7 Q That's Kevin Kloepping?
8 A Right.
9 Q And behind him, the fourth
10 individual from the left?
11 A That looks like Bob Cordes.
12 Q Again, these are all firefighters
13 at the North End Firehouse?
14 A Yes.
15 Q The individual fifth from the
16 left?
17 A Mike Sesty.
18 Q Sixth from the left?
19 A Chris Snyder.
20 Q That's your brother?
21 A Yes.
22 Q Seventh from the left?
23 A Charles Snyder, brother.
24 Q Eighth from the left?
25 A Patrick Maxwell.
00150
1 Q Ninth from the left?
2 A Mike Pepe.
3 Q Tenth from the left?
4 A Myself.
5 Q Eleventh from the left?
6 A Matthew Kickey.
7 Q And then second from the right?
8 A George Schoendorf and -- Joe Schoendorf
9 and George Schoenrock.
10 Q And these are all firefighters of
11 the North End Firehouse? And someone is sitting
12 in the front holding a plaque?
13 A That is my father, Charles Snyder.
14 Q And next to him?
15 A Richard Johnson.
16 Q Richard Johnson. Thank you.
17 Sir --
18 A Want me to go back up?
19 Q You can go back up. Shortly after
20 this incident, that is, the same day of the
21 incident -- the incident was the early morning
22 hours of April 25th, 2004. That day you were
23 notified that the social wing of the firehouse
24 was shut down until further notice, right?
25 A That's correct.
00151
1 Q And then you and other firemen got
2 together and wrote some sort of letter to the
3 Fire Chief threatening to resign if the
4 firehouse didn't reopen by May 2nd; isn't that
5 true?
6 A Yes -- actually, I'm not sure if it was
7 May 2nd, the date; but --
8 Q Now I will trouble you to get down
9 again. I'm sorry. I'm going to put P-134.
10 P-134 is a letter dated April 29th, 2004 written
11 to Frank J. Walters. And he was the Chief of
12 the Fire Department, right?
13 A Yes.
14 Q Do you know who actually typed
15 this letter?
16 A No, I do not.
17 Q Okay. But you signed this letter,
18 right?
19 A Yes, I did.
20 Q And it said the alleged incident
21 that was being investigated had yet to
22 be proven, right?
23 A Right.
24 Q Pointed out that company quarters
25 had been closed for five days, right?
00152
1 A Right.
2 Q You said, "We feel this is
3 unjust," right --
4 A Right.
5 Q -- you folks who signed it?
6 A Treated unfairly, right, unjust okay.
7 Q And the jury will get this
8 document. And it says a few other things; but
9 it says, "In summary, if our company quarters
10 are not opened by Sunday, May 2nd, one week from
11 the alleged incident, the following company
12 action will be taken: We, 18 members of Rescue
13 1 Company, Engine 2, Secaucus Fire
14 Department" -- that is the North -- the
15 firefighters of the North End Firehouse?
16 A Right.
17 Q -- "hereby resign our membership
18 from the Town of Secaucus." That's what you
19 signed your name to, right?
20 A Yep.
21 Q And you say, "Our organization
22 status will change from active firefighters to
23 exempt firefighters," right?
24 A Right.
25 Q And you will move to a new
00153
1 location, right? That's what you signed, right?
2 A Right.
3 Q You say, "We, as an organization
4 shall hire an authority to further pursue this
5 matter," right?
6 A Right.
7 Q And you copied you -- by "you" I
8 mean all the people who signed it, right?
9 A Uh-huh.
10 Q You copied this letter to Mayor
11 Dennis Elwell, right?
12 A Yeah.
13 Q The Fire Department liaison, John
14 Reilly, right? To the Town Administrator,
15 Anthony Iacono, right? The Deputy Chief Raymond
16 Cieciuch and to Battalion Chief Robert Parisi,
17 right?
18 A Yes.
19 Q If you just go to the second page
20 of this, there is your name, right --
21 A Yes.
22 Q -- on the signature page? And
23 there is your signature right under it, right?
24 A Yes, it is.
25 Q And that -- that letter was dated
00154
1 April 29th, right?
2 A Yes.
3 Q Very next day -- you can sit down,
4 sir. The very next day, the day after that
5 letter is dated, Town of Secaucus reopened the
6 North End Firehouse for social purposes, right?
7 Yes?
8 A I'm not sure of the date that they
9 reopened but --
10 Q It did reopen?
11 A The next -- yes, it did.
12 Q You didn't resign, did you?
13 A No, I didn't.
14 Q They met your demand, right?
15 MR. BEVERE: Objection.
16 JUDGE CURRAN: Characterization?
17 MR. BEVERE: Yes, thank you.
18 JUDGE CURRAN: Sustained.
19 Please rephrase.
20 MR. MULLIN: I will withdraw the
21 question.
22 JUDGE CURRAN: Thank you.
23 BY MR. MULLIN:
24 Q You have described the
25 firefighters of the North End Firehouse as,
00155
1 quote, a tight-knit group, right?
2 A Yes.
3 Q And that's what they are, right?
4 A Yes.
5 MR. MULLIN: I have nothing
6 further.
7 JUDGE CURRAN: Mr. Bevere.
8 MR. BEVERE: Thank you.
9 CROSS EXAMINATION BY MR. BEVERE:
10 Q Mr. Snyder, I want to just talk
11 quickly about the picture. And I won't waste
12 time putting it up on the board; I will just
13 hold it. Underneath the photo it says, "Not
14 pictured are Billy Heitzmann, 91 and Walter
15 Spodaryk, 81." Do you see them in the
16 photograph?
17 A No, I don't.
18 Q Do you know why they were not in
19 the photograph?
20 A I have no idea.
21 MR. MULLIN: Objection, Your
22 Honor. Can we have a sidebar on that?
23 JUDGE CURRAN: Sure.
24 (Whereupon, the following sidebar
25 discussion is held.)
00156
1 MR. MULLIN: Well, I don't know
2 where counsel is going with that utterly
3 irrelevant question; but I don't want a surprise
4 like yesterday, when a witness blurted something
5 out. So it might be the most innocent thing in
6 the world. Might be relevant. But I would like
7 to have a proffer.
8 MR. BEVERE: I will tell you the
9 proffer right now. One of the -- one of the --
10 well, the reason I'm asking the question is to
11 establish that not every member of Engine
12 Company Number 2 was at the party that night, as
13 Mr. Johnson testified to.
14 MR. MULLIN: Is there any reason
15 why you want to establish they weren't there?
16 MR. BEVERE: Yes, because --
17 MR. MULLIN: Some
18 heart-rendering -- just wondering because this
19 has already been established. I'll stipulate to
20 it.
21 MR. BEVERE: You will stipulate to
22 the --
23 MR. MULLIN: I have established
24 this these two guys were missing.
25 MR. BEVERE: Missing from the
00157
1 photograph?
2 MR. MULLIN: He said they're
3 missing from the party, Dan. I have no issue
4 with that. I don't want --
5 MS. SMITH: Other witness said it
6 too.
7 MR. BEVERE: I understand the
8 prior witness -- no, no, it's not emotional.
9 JUDGE CURRAN: Okay. Okay. Okay.
10 MR. BEVERE: Judge, one of the
11 reasons that Mr. Iacono gives in his deposition
12 testimony -- everyone is aware of it -- is that
13 he wasn't going to punish the entire company,
14 including people who weren't there that night,
15 from using their firehouse. Mr. Heitzmann and
16 Mr. Spodaryk were not there that night. I'm
17 just trying to establish there were certain
18 firefighters that were not there that night.
19 JUDGE CURRAN: It's a fair
20 question in that regard, unless you want to
21 stipulate.
22 MS. SMITH: Why? Why they weren't
23 there?
24 MR. MULLIN: I would just like --
25 JUDGE CURRAN: That is the next
00158
1 question.
2 MR. MULLIN: It's about why.
3 MR. PARIS: It's about why.
4 MR. BEVERE: Can I ask him --
5 MR. MULLIN: Just yes or no.
6 MR. BEVERE: What if I rephrase
7 the question and I say to Mr. Snyder, "Was every
8 member of Engine Company Number 2 present for
9 party that night?"
10 JUDGE CURRAN: Fair question.
11 MR. BEVERE: Do you have a problem
12 with that?
13 MS. SMITH: No, just not why.
14 JUDGE CURRAN: No, no, that was
15 not the request. Thank you.
16 (Whereupon, sidebar discussion is
17 concluded.)
18 BY MR. BEVERE:
19 Q Were there members of Engine
20 Company Number 2 who were not in attendance at
21 the party that night?
22 A Yes.
23 Q Were there members of Engine
24 Company Number 2 that did not return for the
25 after party at the firehouse?
00159
1 A I believe so, yes.
2 Q Now, the -- at the time of the
3 party what was your rank in the Fire Department?
4 A Lieutenant.
5 Q First lieutenant? Second
6 lieutenant?
7 A First lieutenant.
8 Q Now, as an officer of the company
9 were you involved at all with the organization
10 of the party?
11 A Not that particular one, no.
12 Q Are you aware of the procedure, if
13 any, that's required to be followed when you
14 want to have a party at the firehouse?
15 A As far as what procedure?
16 Q Is there some procedure the Town
17 makes you go through in order to use the
18 firehouse for a party?
19 A If you want -- if you want alcohol there,
20 yes, there is.
21 Q What is that procedure?
22 A You have to get a signed permit from --
23 I'm not even exactly sure of the specifics, but
24 I know you need a signed permit from the Town
25 allowing it for that specific day.
00160
1 Q And can members of the community
2 who are not firemen use the firehouse --
3 A Yes.
4 Q -- for a party?
5 A Yes, they can.
6 Q And do they have to also have to
7 go through that procedure to your knowledge?
8 A Yes, they do.
9 Q And did Engine Company Number 2
10 use the same procedure that any other citizen in
11 Town would have used?
12 A I believe so, yes.
13 Q You talked about being drunk at
14 the firehouse. Did you ever get drunk at the
15 firehouse when there was not a written
16 authorization for a party?
17 A No.
18 Q The -- Mr. Mullin asked you about
19 your not wanting to give a statement to the
20 police in this matter. Do you recall that?
21 A Yes.
22 Q And then he also asked you whether
23 or not the Town terminated you for refusing to
24 do so?
25 A Yeah.
00161
1 Q Do you recall that?
2 A I recall that.
3 Q And your answer was, "No." Did
4 you receive a subpoena to appear before the
5 Grand Jury?
6 A Yes.
7 Q And did you go?
8 A Yes, I did.
9 Q And did you receive a subpoena
10 from Mr. Mullin's office to come to his office
11 for a deposition?
12 A Not his office, but --
13 Q Oh, I'm sorry, for a deposition.
14 A Yes, we --
15 Q I think we established it was at
16 another law firm?
17 A Yes.
18 Q And you went to that and gave
19 testimony?
20 A Yes, I did.
21 Q Now, we talked about the
22 resignation letter. The company quarters, I
23 believe you testified in response to
24 Mr. Mullin's questioning, were reopened,
25 correct?
00162
1 A Correct.
2 Q All right. When the Chief agreed
3 to reopen the firehouse, did he impose any
4 conditions on you guys?
5 A No, not that I'm aware of.
6 Q Okay.
7 A I don't know.
8 Q Did he tell you --
9 MR. MULLIN: Objection, Your
10 Honor, leading. The witness has answered the
11 question.
12 JUDGE CURRAN: Sustained.
13 MR. BEVERE: Well, Judge, I will
14 ask --
15 JUDGE CURRAN: You can rephrase?
16 MR. BEVERE: I will ask it in a
17 non-leading manner.
18 BY MR. BEVERE:
19 Q Did Chief Walters have any --
20 JUDGE CURRAN: You want to have --
21 MR. MULLIN: I think we ought to
22 have a sidebar.
23 JUDGE CURRAN: Right.
24 (Whereupon, the following sidebar
25 discussion is held.)
00163
1 JUDGE CURRAN: You always have the
2 right to rephrase in --
3 MR. BEVERE: I do --
4 JUDGE CURRAN: -- in non-leading
5 manner. I thought you were asking something.
6 MR. BEVERE: I thought Mr. Mullin
7 wanted the sidebar.
8 MR. MULLIN: My second objection
9 here will be asked and answered. He got an
10 answer he didn't like. He asked the question,
11 did the Chief impose any conditions upon the
12 reopening the firehouse? The witness gave him
13 just a flat out no.
14 Now, through leading or other
15 kind of questions, he is going to suggest the
16 right answer.
17 The witness has answered this
18 question. This has been asked and answered.
19 This is not the time to feed the witness some
20 way out of that answer. And that's what I hear
21 coming up in the next question.
22 MR. BEVERE: Judge.
23 MR. MULLIN: Did he tell you --
24 MR. BEVERE: First of all, the
25 question was specific one, which was conditions.
00164
1 I don't know if this witness has the full
2 understanding of what I mean when I say
3 "conditions." So what I want to ask the witness
4 is: Did you have -- did anyone from Engine
5 Company Number 2 to your knowledge have any
6 discussions or -- what I will say is: Did --
7 what, if anything, did Chief Walters tell you
8 about interacting with the plaintiffs next door?
9 What, if anything, did he tell you.
10 MR. MULLIN: That's asked and
11 answered.
12 JUDGE CURRAN: Well, no, not
13 really. I'll allow that question.
14 MR. BEVERE: Thank you, Judge.
15 JUDGE CURRAN: I will note the
16 objection.
17 MR. MULLIN: Thank you.
18 (Whereupon, sidebar discussion is
19 concluded.)
20 BY MR. BEVERE:
21 Q When the Chief, Fire Chief agreed
22 to reopen the firehouse, what, if anything, did
23 he tell or instruct the members of Engine
24 Company Number 2 with regard to interacting,
25 with your contact with the persons next door?
00165
1 A I believe they just said, "Keep your
2 distance," something to that effect, just don't
3 -- don't bother with anybody, you know, just
4 stay -- stay here. If you are -- if you are
5 going to be here, stay here. I don't -- I don't
6 recall exactly what was said, but something to
7 that effect.
8 Q After that day did you have any
9 contact or interaction with the persons at 988
10 Schopmann?
11 A No.
12 Q Prior to that day have you
13 personally had any contact or interaction with
14 anyone living at 988 Schopmann?
15 A No.
16 Q To your knowledge did anyone at
17 the firehouse have any further contact or
18 interaction with anyone at 988 Schopmann after
19 April 25th, 2004?
20 A No.
21 Q When the firehouse was reopened on
22 May 1st, were you aware that the police were
23 investigating what had happened on the morning
24 of April 25th?
25 A Yes.
00166
1 Q Do you know whether the other
2 members of Engine Company --
3 MR. MULLIN: Objection.
4 Q -- Number 2 were aware?
5 MR. BEVERE: I asked him if he
6 knows.
7 JUDGE CURRAN: He may --
8 MR. MULLIN: If he knows what
9 other people are thinking? I would object.
10 JUDGE CURRAN: I'll allow the
11 question.
12 BY MR. BEVERE:
13 A Can you repeat it? I'm sorry.
14 Q Do you know whether the other
15 members of Engine Company Number 2 were aware
16 that the police were investigating the incidents
17 of April 25th?
18 A I don't know.
19 Q To your knowledge, aside from a
20 communion party that might have happened at the
21 firehouse sometime in the middle of May, were
22 any other parties held at the firehouse from
23 April 26th, 2004 through the end of the fall?
24 A Not that I'm aware of.
25 Q But you were the sec -- the first
00167
1 lieutenant?
2 A First lieutenant.
3 Q And you have no knowledge of any
4 such parties?
5 A I don't even remember the christening,
6 actually.
7 Q When -- when a car pulls into the
8 Fire Department parking lot and -- and a car
9 needs to park, where are the parking spaces for
10 parking in that lot?
11 A They kind of face 988 Schopmann. 988
12 Schopmann, they pull in towards it.
13 Q Okay.
14 A If you were to pull into the lot, you are
15 pulling in towards 988 Schopmann.
16 Q That's where all the parking
17 spaces are?
18 A Right.
19 Q Okay.
20 MR. BEVERE: Okay. I have no
21 further questions, thank you.
22 REDIRECT EXAMINATION BY MR. MULLIN:
23 Q Sir, in the period after the
24 incident on the early morning hours of
25 April 25th, 2004 firemen would pull into those
00168
1 parking spaces and -- at night and leave their
2 headlights on for hours pouring into the side
3 windows of the deVries and Carter residence;
4 isn't that true?
5 A No.
6 Q You never saw that happen?
7 A No.
8 Q Did you ever hear anybody drive by
9 the plaintiffs -- by Mr. Carter and Mr. deVries,
10 drive by in their vicinity, screaming at them,
11 "Faggots"?
12 A No.
13 Q Ever hear anybody drive by their
14 house the day the firehouse re-opened yelling,
15 "The homos are home. The homos are home"?
16 A No.
17 Q Ever see anybody go right across
18 the street from the bay door of your engine
19 company, right across the street and spray paint
20 with shaving cream the words, "El Homo"? Ever
21 see anybody do that?
22 A No.
23 MR. MULLIN: I have nothing
24 further.
25 JUDGE CURRAN: Any further
00169
1 questions?
2 MR. BEVERE: Oh, I'm sorry, Your
3 Honor. No, no thank you.
4 JUDGE CURRAN: Is there anyone on
5 the jury who has any questions for this witness?
6 If so, please raise your hand. Anyone on the
7 jury?
8 Thank you, sir. You may step
9 down.
10 THE WITNESS: Thank you.
11 (Whereupon, the witness is
12 excused.)
13 MR. MULLIN: Maybe it's time to
14 break for lunch?
15 JUDGE CURRAN: I think that's a
16 good idea.
17 We will give you the lunch break.
18 Today we will give you a little longer because
19 you haven't always gotten your fair share. So
20 if you will be back at 1:30, that would be
21 great.
22 Once again, please do not discuss
23 the case among yourselves. Please do not
24 discuss it with anyone else. Thank you.
25 Off the record.
00170
1 (Whereupon, the jury is excused
2 for lunch.)
3 (Whereupon, a luncheon recess is
4 taken.)
5 A F T E R N O O N S E S S I O N
6 JUDGE CURRAN: Please bring out
7 the jury.
8 MS. HAWKS: Jurors are
9 approaching.
10 JUDGE CURRAN: Thank you.
11 MS. HAWKS: You're welcome.
12 (Whereupon, the jury is brought
13 into the courtroom.)
14 JUDGE CURRAN: Juror Number 2, you
15 look like you're prepared for a long afternoon,
16 right?
17 Please be seated. Thank you.
18 Thank you. Miss Hawks took care
19 of it.
20 MR. BEVERE: Thank you, Judge.
21 Thank you.
22 MS. HAWKS: Raise your right hand,
23 sir. Place your left hand on the Bible.
24 M A T T H E W K I C K E Y, is duly sworn by a
25 Notary Public of the State of New Jersey
00171
1 And testifies under oath as follows:
2 MS. HAWKS: For the record, please
3 state your full name and spell your last name,
4 please.
5 THE WITNESS: Matthew Kickey,
6 K-i-c-k-e-y.
7 MS. HAWKS: Thank you.
8 JUDGE CURRAN: Thank you. Please
9 be seated.
10 THE WITNESS: Thank you, Judge.
11 JUDGE CURRAN: Good afternoon.
12 THE WITNESS: Your Honor, I would
13 like to apologize for the cell phone
14 misunderstanding before.
15 JUDGE CURRAN: Sir, you're under
16 oath. All your testimony must be truthful and
17 accurate to the best of your ability. Do you
18 understand?
19 THE WITNESS: Yes.
20 JUDGE CURRAN: Thank you, sir.
21 Please give us your address for the record.
22 THE WITNESS: 25 Arn, A-r-n,
23 Terrace, Secaucus, New Jersey.
24 JUDGE CURRAN: Thank you.
25 Mr. Mullin, your witness.
00172
1 MR. MULLIN: Yes.
2 DIRECT EXAMINATION BY MR. MULLIN:
3 Q Sir, your name is Matthew Kickey,
4 right?
5 A Yes, sir.
6 Q And your father is and has been a
7 member of the Town Council of Secaucus, right?
8 A Oh, he was.
9 Q He was?
10 A Yes, sir.
11 Q And he was a member of the Town
12 Council of Secaucus for a number of years,
13 correct?
14 A Yes, sir.
15 Q And he was a member of the Town
16 Council, among other years, in the year 2004,
17 correct?
18 A Yes, sir.
19 Q Okay. And you have an uncle who
20 is and has been a captain of the Secaucus Police
21 Department?
22 A Yes, sir.
23 Q And what is your uncle's name?
24 A Joe.
25 Q Joseph?
00173
1 A Kickey, yes.
2 Q Joseph Kickey?
3 A Yep.
4 Q And your uncle was a captain of
5 the Secaucus Police Department in 2004, right?
6 A Yes, sir.
7 Q Now, currently you're a detective,
8 right?
9 A Yes, sir.
10 Q And you're a detective with the
11 Hudson County Prosecutor's Office, right?
12 A Yes, sir.
13 Q You have been a detective since
14 2005, right?
15 A Yes, sir.
16 Q But you were employed by the
17 Hudson County Prosecutor's Office before you
18 became a detective, right?
19 A Yes, sir.
20 Q And how long have -- how long
21 before -- let's strike that.
22 When did you start with the Hudson
23 County Prosecutor's Office as an employee?
24 A I started employee in the summer of 2002.
25 Q 2002?
00174
1 A Yes.
2 Q And have you worked continuously
3 with the Hudson County Prosecutor's Office from
4 that point in 2002 right up through today?
5 A Yes, sir.
6 Q Okay. Now, at one point in time
7 you were a member of Engine Company 2 of the
8 Secaucus Fire Department, right?
9 A Yes, sir.
10 Q And during the time you were with
11 Engine Company 2 as a firefighter?
12 A Yes.
13 Q And you were property clerk after
14 you were firefighter, right?
15 A Yes, sir.
16 Q And then you became the company
17 secretary, right?
18 A Yes, sir.
19 Q And during that whole time you
20 were stationed at what we're calling in this
21 trial the North End Firehouse, right?
22 A Yes, sir.
23 Q And that's the firehouse whose
24 parking lot is located at the corner of Paterson
25 Plank Road and Schopmann Drive, right?
00175
1 A Yes, sir.
2 Q And you -- you left -- in 2005 you
3 left the Fire Department of Secaucus in order to
4 go to the Essex County Police Academy; is that
5 right?
6 A Yes, sir.
7 Q You were not terminated by the
8 Fire Department, right?
9 A No, sir.
10 Q During your entire tenure, during
11 your entire period of working as a volunteer
12 fireman with -- with Engine Company 2 in the
13 North End Firehouse the Fire Department never
14 terminated your employment or suspended your
15 employment, right?
16 A No.
17 Q Is that a yes? Yes, the Fire
18 Department --
19 A I'm sorry, they never --
20 Q Is it true that during the entire
21 time you were a firefighter from 2002 all the
22 way until you voluntarily left in 2005 the Fire
23 Department never suspended your employment or
24 terminated your employment?
25 A Right. Yes, it's correct.
00176
1 Q And just to make the question
2 complete, during that entire period as a
3 volunteer firefighter from 2002 to 2005 the Town
4 Council operating with the Mayor never suspended
5 your employment as a firefighter or -- or
6 terminated your employment as a firefighter,
7 right?
8 A Yes.
9 Q Is that a yes?
10 A Yes.
11 Q Your father, Robert Kickey, the
12 councilman, right?
13 A Yes, sir.
14 Q He has been a firefighter in
15 Secaucus while he has been a councilman, right?
16 A No.
17 Q When was -- your father was a
18 firefighter, right?
19 A No, that's incorrect.
20 Q It's your contention your
21 father --
22 A My father was never a fireman.
23 Q All right. So during the time
24 that you were a firefighter for Secaucus you
25 never received any training with regard to
00177
1 harassment or discrimination, true?
2 A True.
3 Q Now, during the time that you were
4 a firefighter stationed at the North End
5 Firehouse, there were times that you would
6 socialize at the firehouse, right?
7 A Yes, sir.
8 Q In fact, there was a bar in the
9 North End Firehouse, right?
10 A Yes, sir.
11 Q And during the time you were a
12 firefighter the bar was stocked most of the
13 time, right?
14 A Yes, sir.
15 Q And when socializing with the
16 firefighters at the firehouse, sometimes you
17 would drink during parties there, right?
18 A Yes, sir.
19 Q And there -- there were occasions
20 when there was drinking going on by firemen at
21 the firehouse but there was no permit issued by
22 the Town for that drinking; is that right?
23 A Yes, sir.
24 Q And that happened somewhat
25 frequently, that firefighters were in that North
00178
1 End Firehouse drinking when there was no permit
2 for a social function, true?
3 A Yes, sir.
4 Q Okay. Sometimes you even got
5 drunk at the firehouse during certain parties,
6 right?
7 A Parties, yes, sir.
8 Q At the North End Firehouse, right?
9 A Yes, sir.
10 Q Now, you attended an awards
11 dinner, a company function on -- for the
12 firefighters in the North End Firehouse starting
13 in the evening of April 24th, 2005, true, sir?
14 A Yes, sir.
15 Q And first you and your fellow
16 firemen had some drinks at the firehouse, right?
17 Right?
18 A Before and -- I don't really recall.
19 Q You don't recall whether or not
20 you had a drink?
21 A Yes.
22 Q But you then all took a bus from
23 the firehouse over to some restaurant, right?
24 A Yes, sir.
25 Q And you took the bus, as far as
00179
1 you understood it, because everyone understood
2 there would be drinking, right?
3 A Yes, sir.
4 Q And there was an open bar at the
5 dinner, right?
6 A Yes, sir.
7 Q And you definitely had over ten
8 drinks, both beer and hard liquor, at that
9 company function on the night of April 24th,
10 2004, right?
11 A Yes, sir.
12 Q In fact, you can't remember
13 exactly what time that function -- that
14 restaurant portion of the function ended because
15 you had so much to drink, right?
16 A Yes, sir.
17 Q And it's your recollection that
18 the majority of people at that party were
19 drinking, right?
20 A Yes, sir.
21 Q You did some shots there with some
22 guys, but you don't remember who with, right?
23 A No, sir.
24 Q Then you took the bus back to the
25 firehouse, right?
00180
1 A Yes, sir.
2 Q And you and the other members of
3 the fire company who were in attendance exited
4 the bus, went through the parking lot and -- and
5 towards the firehouse at some point, right?
6 A Yes, sir.
7 Q Now, at some point your father,
8 the councilman, indicated to the police that you
9 were refusing to talk to the Secaucus Police
10 about the incident of the early morning hours of
11 April 25th, 2004, correct?
12 A I wouldn't say, "refused." He -- as far
13 as I know, I was at work that night. I wasn't
14 there when the phone call that he received. As
15 far as I know, when they called, he told them,
16 "He is over 18; I can't answer for him. But if
17 you do talk to him, we are going to have a
18 lawyer there." And that's as far as --
19 Q But you weren't present when --
20 A No.
21 Q -- when he said that?
22 A No, I was at work at the time.
23 Q You never spoke to the Secaucus
24 Police Department about the incident of the
25 early morning hours of April 25th, 2004,
00181
1 correct?
2 A I never gave a statement, correct.
3 Q Never gave a statement. And at
4 that time, at the time of that incident you were
5 already working for the Hudson County
6 Prosecutor's Office, right?
7 A Yes, sir.
8 Q And at some point Detective
9 DeGennaro and Detective Reinke of the Secaucus
10 Police Department showed up right in this
11 building, right?
12 A Not this building, sir.
13 Q Not this building. Which building
14 was it?
15 A Duncan Avenue, sir.
16 Q In Jersey City?
17 A Yes.
18 Q Let me rephrase the question. At
19 some point after this incident of the early
20 morning hours of April 25th, 2004, two
21 detectives of the Secaucus Police Department
22 showed up at the offices in Jersey City where
23 you worked for the Hudson County Prosecutor,
24 right --
25 A Correct, sir.
00182
1 Q -- correct? And you refused to
2 speak to them at that time?
3 A Yes, sir.
4 Q And you never spoke to them at any
5 time, right?
6 A Any time after that, no.
7 Q What's that?
8 A No, sir.
9 Q And you were never terminated
10 by -- from your work relationship with the
11 Secaucus Fire Department by the Town Council,
12 the Mayor, the Town Administrator or the Fire
13 Chief as a result of your refusal to talk to the
14 Secaucus Police Department about the incident
15 we've been discussing, right? You were never
16 terminated?
17 A I was never terminated.
18 Q You were never suspended for
19 that --
20 A Right.
21 Q -- is that correct?
22 A Correct.
23 Q While you -- you continued on at
24 the Secaucus Fire Department located at the
25 North End Fire Station for sometime after April
00183
1 25th, 2004, right? Because you left in 2005,
2 right?
3 A Yes, sir.
4 Q Do you happen to remember what
5 month you left in 2005?
6 A I believe it was around April.
7 Q So about a year later?
8 A Yes, sir.
9 Q During that year you never saw
10 that the Town Council, the Mayor, the Town
11 Administrator, the Fire Chief had fired or
12 suspended any firefighter in the North End
13 Firehouse in connection with the incident of the
14 early morning hours of April 25th, 2004, right?
15 A Correct.
16 Q You never observed that? You
17 never observed that those folks -- that Council,
18 the Town Administrator, the Fire Chief ordered
19 that the firefighters who were present at the
20 night of the incident be disbanded and -- and
21 assigned to other firehouses? That never
22 happened, right?
23 A It's never happened.
24 Q And after May 1st, 2004 what you
25 saw was that, in fact, Mayor, the Town Council,
00184
1 the Town Administrator, the Fire Chief allowed
2 the social wing of the North End Firehouse to
3 reopen, right?
4 A Yes, sir.
5 Q It remained open?
6 A Yes.
7 Q It never shut down while you were
8 there?
9 A While I was there, yes.
10 Q That year you were there, say from
11 April 25th, 2004 until April 25th, say, 2005,
12 the Town Council, operating with the Mayor, did
13 not disband the fire companies stationed in the
14 North End Firehouse, right? That didn't happen,
15 right?
16 A No, it didn't happen.
17 Q And in fact, some of the
18 firefighters who were present at the night of
19 the incident in that firehouse, well, some of
20 them actually received certain promotions,
21 right? Are you aware of that?
22 A Within that time frame?
23 Q How about within that time frame?
24 A I don't recall who was promoted.
25 Q How about after that time frame;
00185
1 are you aware of any promotions?
2 A Yes.
3 Q Are you aware that Chuck Snyder,
4 Jr. was promoted to battalion chief?
5 A Yes, sir.
6 MR. MULLIN: No further questions.
7 JUDGE CURRAN: Mr. Bevere.
8 MR. BEVERE: Yes, Judge, I will be
9 brief.
10 CROSS EXAMINATION BY MR. BEVERE:
11 Q Mr. Kickey, what do you do for the
12 Hudson County Prosecutor's Office?
13 A Presently I am a detective.
14 Q And what are your job functions as
15 a detective?
16 A Investigate crimes such as -- I am
17 assigned to a MARS unit, which is basically a
18 multi-agency task force with Bergen County and
19 the State Police. I investigate money
20 laundering, drug trafficking crimes, any other
21 crimes out in the street.
22 Q And you said that you were
23 employed by the Hudson County Prosecutor's
24 Office for a period of time 2002 to 2005 prior
25 to you becoming a detective. And what was your
00186
1 employment with the Hudson County Prosecutor's
2 Office in that period of time?
3 A I started off as a -- at clerical
4 position. And then, about a month later I moved
5 to full-time. I was a base operator.
6 Q What does it mean to be a -- in a
7 clerical position?
8 A I work in the property and evidence room
9 just helping them clean up -- you know, clean
10 out whatever they have to do there.
11 Q What do you do as a base operator?
12 A Base operator, basically my function was
13 radio communications. Anybody calling on the
14 radio would go through me. I work at night.
15 There was no -- nobody to answer phones, so I
16 answered the phones, took any calls. And any
17 rap sheets had to be run on -- you know, people
18 working on investigations who needed
19 information, I was the one who ran the
20 information for them.
21 Q Okay. And as a base -- I'm sorry,
22 what is that?
23 A Base operator.
24 Q That was a base operator?
25 A Yes, sir.
00187
1 Q What is your current rank in the
2 Hudson County Prosecutor's Office?
3 A Detective.
4 Q Now, Mr. Mullin asked you if you
5 gave a statement to the police in this case.
6 And I believe your answer was no --
7 A That's correct.
8 Q -- correct?
9 A Correct.
10 Q All right. Now, were you issued a
11 subpoena to appear before the Grand Jury?
12 A Yes, I was, by the Attorney General's
13 Office.
14 Q And did you appear before the
15 Grand Jury?
16 A Yes, I did.
17 MR. MULLIN: Your Honor, we have
18 an objection and we have a ruling from the
19 Court; and that's in violation.
20 MR. BEVERE: Judge, can we come to
21 sidebar, please?
22 JUDGE CURRAN: Surely.
23 (Whereupon, the following sidebar
24 discussion is held.)
25 MR. MULLIN: Your Honor, the
00188
1 ruling was that witnesses being asked if they
2 received a subpoena, were asked to attend the
3 Grand Jury -- he can't say they appeared there
4 because the implication is going to be -- if I
5 don't now produce evidence what they did say or
6 didn't say in front of the Grand Jury, the jury
7 is going to draw some negative inference. As we
8 all agree, the State has not given us the Grand
9 Jury --
10 MR. BEVERE: Let me --
11 MR. MULLIN: Let me add this. We
12 don't know if this witness cooperated. I don't
13 know what he did at the Grand Jury. I don't
14 know that he refused to testify. I don't know
15 that he took the Fifth. I don't know what he
16 did. The implication of that question and that
17 answer is he went down and he cooperated. We
18 don't know that. That's an implication we have
19 no evidence for.
20 MR. BEVERE: Here is why -- why I
21 bring it up, Judge. Not to draw -- not so we
22 can draw --
23 JUDGE CURRAN: I can't hear you.
24 MR. BEVERE: Just for -- let me
25 just -- the reason this is relevant is because
00189
1 Mr. Mullin is saying that the Town never
2 determined --
3 JUDGE CURRAN: I am really sorry.
4 Because of the fan, I am having trouble hearing
5 you.
6 MR. BEVERE: Mr. Mullin, what we
7 will call direct examination, but really
8 cross-examination, asked: Did the Town
9 terminate you or suspend you for failing to give
10 a statement to the police? And what I'm
11 establishing is when this witness got a subpoena
12 to appear, he complied with the subpoena. When
13 he got a subpoena to appear by Mr. Mullin, he
14 complied with that. That's my purpose. That's
15 the relevance of this.
16 MR. MULLIN: I don't know that he
17 testified. I don't know that he was cooperative
18 at all in front of that Grand Jury. For all I
19 know, he was resistant. For all I know, he
20 lied. I don't know what he did in front of the
21 Grand Jury.
22 JUDGE CURRAN: As I understand,
23 Grand Jury subpoena requires that you appear.
24 And one could define compliance as appearing.
25 If you will rephrase the question just using
00190
1 compliant with any subpoena either by Mr. Mullin
2 or anyone else.
3 MR. BEVERE: Did you comply with?
4 JUDGE CURRAN: That's fair.
5 MR. BEVERE: Did you comply with
6 the subpoena issued by the Grand Jury?
7 MR. PARIS: Yeah, did you show up?
8 JUDGE CURRAN: Well --
9 MR. BEVERE: That was my question,
10 did you appear? He appeared. That was then --
11 I was going to go on to my next question.
12 JUDGE CURRAN: Their argument is,
13 partially, "appear" and "comply" are two
14 different things.
15 MR. PARIS: I think -- I thought
16 that the earlier ruling was that the question we
17 were allowed to ask: Did you appear before the
18 Grand Jury? And the question we weren't allowed
19 to ask is: Did you testify before the Grand
20 Jury?
21 JUDGE CURRAN: Right, right,
22 originally.
23 MR. PARIS: Did you appear before
24 the Grand Jury, that was it. But we weren't
25 allowed to ask if they testified or not. That's
00191
1 all. So we can't --
2 JUDGE CURRAN: If you want to ask
3 them -- it is -- if you want to ask them, "Did
4 you testify," we don't know whether he is going
5 to say, "yes" or, "no."
6 MR. PARIS: I don't want --
7 JUDGE CURRAN: But then, you know,
8 I could indicate to the jury that all Grand Jury
9 proceedings are secret. That's already on the
10 record.
11 MR. MULLIN: I think I would like
12 that to be stated now, that the Grand Jury
13 records here are secret and sealed and --
14 JUDGE CURRAN: And have not been
15 received by either side.
16 MR. MULLIN: Either side.
17 MR. BEVERE: But Judge, the only
18 evidence I'm trying to exhibit is that this
19 witness got a subpoena and he went down to the
20 Grand --
21 JUDGE CURRAN: I understand.
22 MR. BEVERE: That's all I'm trying
23 to establish. I am not trying to get into
24 anything the Grand Jury did.
25 JUDGE CURRAN: I understand.
00192
1 MR. BEVERE: All -- this witness
2 got a subpoena -- want me to say, "Did you
3 comply with the subpoena?" I will ask him that
4 question. I am happy to ask that question, "Did
5 you comply with the subpoena?"
6 MS. SMITH: No.
7 JUDGE CURRAN: I don't think there
8 is any objection.
9 MR. MULLIN: I don't object to
10 that narrow question, but I would like that
11 instruction because I think --
12 JUDGE CURRAN: I will do --
13 MR. BEVERE: Judge, I don't think
14 it's -- I don't think we need to give an
15 instruction at this point. All I am asking is:
16 Did you comply with the subpoena? And he says
17 yes.
18 MR. MULLIN: Damage has been done.
19 MR. BEVERE: There is no damage.
20 MR. MULLIN: The implication is he
21 went down and cooperated.
22 JUDGE CURRAN: See, it would be a
23 little different if we knew what he did or
24 didn't do; but we really don't know. So we'd
25 have to, as I said, take "comply" to mean show
00193
1 up and have no other definition.
2 MR. PARIS: How about: Did you
3 appear and comply with the subpoena? Did you
4 appear? That was -- the question we were
5 allowed is: Did you appear?
6 JUDGE CURRAN: Did you appear is
7 originally, way back when.
8 MR. PARIS: So did you receive a
9 subpoena from the Grand Jury? Did you appear?
10 What's wrong with that?
11 MR. MULLIN: Your Honor, I still
12 request that instruction. Doesn't have to
13 be characterized as a curative. It's a bald
14 instruction on either side.
15 JUDGE CURRAN: I think it is
16 valid, considering we have said that before.
17 You can ask him "appear," if you want to.
18 MR. BEVERE: I think I already
19 asked, "Did you appear before the Grand Jury?"
20 I think his answer was, "Yes."
21 JUDGE CURRAN: Do you want to just
22 go on, then, and I'll just -- I mean, I'll do
23 the instruction, anyway; or do you want to
24 re-ask the question?
25 MR. BEVERE: Let me re-ask the
00194
1 question, "Did you appear before the Grand
2 Jury?" He can say, "Yes," then you can give --
3 JUDGE CURRAN: I think it's fairer
4 to do it that way.
5 MR. BEVERE: Thanks, Judge.
6 (Whereupon, sidebar discussion is
7 concluded.)
8 JUDGE CURRAN: Mr. Bevere.
9 MR. BEVERE: Thank you, Your
10 Honor.
11 BY MR. BEVERE:
12 Q Mr. Kickey, did you receive a
13 subpoena from the Attorney General's Office to
14 appear before the Grand Jury?
15 A Yes, sir.
16 Q And did you appear before the
17 Grand Jury?
18 A Yes, I did.
19 Q And did -- I'm sorry, Your Honor.
20 Please.
21 JUDGE CURRAN: Ladies and
22 Gentlemen, no further questions will be allowed
23 on that because, as you already heard, all Grand
24 Jury proceedings are secret. And in fact,
25 neither the plaintiffs nor the defense have been
00195
1 provided with any information as to what, if
2 any, testimony was given before the Grand Jury
3 by any witness.
4 MR. BEVERE: Thank you, Your
5 Honor.
6 BY MR. BEVERE:
7 Q And Mr. Kickey, did you receive a
8 subpoena from Mr. Mullin's office to appear for
9 a deposition?
10 A Yes, I did.
11 Q And did you appear for that
12 deposition and give testimony?
13 A Yes, I did.
14 Q Now, Mr. Mullin asked you about
15 whether you had received any harassment or
16 discrimination training from the Town. My
17 question to you is: After April 25th, 2004 were
18 you required in your position as a volunteer
19 firefighter to attend sensitivity training?
20 A Yes, we did.
21 Q And that was with the Town?
22 A Yes.
23 Q I believe you testified in
24 response to Mr. Mullin's questions that you,
25 excuse me, had, in fact, consumed alcohol at the
00196
1 firehouse in the past?
2 A Yes, sir.
3 Q Now, what was the Fire
4 Department's policy with regard to alcohol use
5 in the firehouse --
6 A If you are going --
7 Q -- in 2004?
8 A If there was a party, you needed a permit
9 signed off in order to allow alcohol to
10 be served.
11 Q And is it your understanding that
12 Engine Company Number 2 obtained a permit to
13 have a party at the firehouse that night?
14 A Yes, sir.
15 Q Did you ever get intoxicated at
16 the firehouse at a -- at a -- at an event for
17 which there was not an approved permit to
18 consume alcohol?
19 A Couldn't really be accurate on that.
20 Most of the parties I attended we had permits.
21 Q Drinking would go on at the
22 firehouse when --
23 MR. MULLIN: Objection to the
24 leading, Your Honor.
25 JUDGE CURRAN: Sustained.
00197
1 MR. BEVERE: Okay.
2 BY MR. BEVERE:
3 Q My -- my question to you, though,
4 Mr. Kickey, with regard to the alcohol
5 consumption at the firehouse, were there times
6 when alcohol was consumed on premises but there
7 was no permit in place?
8 A Yes, sir.
9 Q And I think Mr. Mullin had asked
10 you if you would -- ever gotten drunk at the
11 firehouse. And my question to you, I think, is:
12 Did you ever get drunk when there wasn't a
13 permit?
14 A To be accurate, no, I didn't.
15 Q Your answer is?
16 A No, I haven't.
17 Q Was there ever a party at the
18 firehouse to your knowledge when there wasn't a
19 permit in place for that?
20 A To my knowledge most of the parties, you
21 know, we had permits for.
22 Q Excuse me?
23 A To my knowledge the parties that were
24 thrown we had permits for.
25 Q Now, Mr. Kickey, just very, very
00198
1 quickly. I know you haven't been a firefighter
2 in Secaucus since --
3 A 2005.
4 Q -- 2005.
5 A Yes, sir.
6 Q Do you have a recollection of the
7 firehouse, layout of the firehouse?
8 A Yes.
9 Q And obviously, familiar with the
10 parking lot of the firehouse?
11 A Yes, sir.
12 Q Okay. The -- how many entrance --
13 entrances are there to the firehouse?
14 A Three.
15 Q Okay. And where were those
16 entrances?
17 A There was one located -- if you are
18 looking at the building to the right, all the
19 way in the back.
20 Q Meaning, if you are standing on
21 Schopmann Drive, looking at the firehouse?
22 A No, sir. If you stand on Paterson Plank
23 Road, looking at the firehouse.
24 Q I'm sorry, Paterson Plank Road.
25 A There was a door all the way in the back.
00199
1 There was one on the same side on the front.
2 And then the adjacent part of the firehouse,
3 there was another front door.
4 Q Okay. And when you say -- I'm
5 sorry, with regard to the parking lot, there was
6 an entrance off the parking lot you testified?
7 A Two. There was one in the front, one in
8 the back.
9 Q Okay. With regard to the one in
10 the rear --
11 A Yes, sir.
12 Q -- when one walked through the
13 parking lot into that entrance, what room would
14 you walk into?
15 A You walked into the kitchen.
16 Q Okay. And then beyond the kitchen
17 was what room?
18 A That was the backroom.
19 Q Okay. And that's where the bar
20 was --
21 A Yes, sir.
22 Q -- in the back room?
23 A Yes, sir.
24 Q What type of door was -- separated
25 the kitchen from the exterior of the firehouse?
00200
1 A Steel door, I guess it was. I'm not
2 really sure.
3 Q Did it have any windows?
4 A I believe it had like little windows up
5 top. I'm not really sure on that.
6 Q You don't remember?
7 A No.
8 Q Okay. And the bar had a jukebox?
9 Did the bar area, the social area, have a
10 jukebox?
11 A What do you mean by a "jukebox"?
12 Q Any device to play music?
13 A No, we had a stereo setup.
14 Q Okay. I'm sorry, a stereo?
15 A Yes.
16 JUDGE CURRAN: You're showing your
17 age.
18 MR. BEVERE: Judge, I --
19 JUDGE CURRAN: I know what a
20 jukebox is.
21 MR. BEVERE: I didn't think I was
22 that old; but apparently, I am.
23 And I lost my train of thought
24 with that question.
25 JUDGE CURRAN: I'm sorry.
00201
1 MR. BEVERE: That's okay, Judge.
2 BY MR. BEVERE:
3 Q When -- in that room that you
4 talked about, the room where people socialized,
5 now, you have to walk through the kitchen to get
6 to that room?
7 A Yes, sir.
8 Q All right. Are there any windows
9 in that room that look out into the parking lot?
10 A Yes, sir, there is.
11 Q That look actually out onto the
12 parking lot, itself, from that room?
13 A Yes, sir, located next to the door, right
14 next to the door, the entrance, there was a
15 window.
16 Q There was a window, but where does
17 that window face?
18 A Are you talking about the room when you
19 first walk into the firehouse?
20 Q No, I am talking about the room --
21 the socializing room.
22 A Okay. There is a window facing Schopmann
23 Drive out the back.
24 Q So it faces the rear?
25 A Yes.
00202
1 Q Does not face the parking lot?
2 A Does not face the parking lot, I'm sorry.
3 MR. MULLIN: Object to the
4 leading. I object to the leading.
5 MR. BEVERE: Judge.
6 MR. MULLIN: I ask that question,
7 answer be stricken.
8 JUDGE CURRAN: I'll overrule it
9 because of the nature of the question.
10 MR. BEVERE: Thank you, Judge.
11 JUDGE CURRAN: It is leading,
12 however.
13 BY MR. BEVERE:
14 Q All right. And Mr. Kickey, you
15 were no longer a member of Engine Company Number
16 2 as of April 2005?
17 A Yes, sir.
18 MR. BEVERE: Okay. I have no
19 further questions, thank you.
20 JUDGE CURRAN: Thank you.
21 MR. MULLIN: Just give me one
22 minute, Your Honor.
23 JUDGE CURRAN: Excuse me one
24 second. We will go off the record.
25 (Whereupon, a discussion is held
00203
1 off the record.)
2 JUDGE CURRAN: We will go back on
3 the record.
4 REDIRECT EXAMINATION BY MR. MULLIN:
5 Q Sir, could I ask you to step off
6 the stand to look at this for one second?
7 A Sure.
8 Q I am showing P-163A. Sir, the
9 jury has seen this photograph before. Just
10 stand over there. This is the firehouse parking
11 lot here, right?
12 A Yes, sir.
13 Q That is Schopmann Drive residence
14 that the deVries and Carter were renting, right?
15 A Yes, sir.
16 Q This is the side of the firehouse,
17 right?
18 A Yes, sir.
19 Q And that's a window right there,
20 right?
21 A Yes, sir.
22 Q And that window faces right onto
23 the parking lot, right?
24 A Yes, sir.
25 Q Okay. That's the firehouse door?
00204
1 A Yes, sir.
2 Q That's a window?
3 A Yes, sir.
4 Q Window faces right onto the
5 parking lot, right?
6 A Yes, sir.
7 Q Okay. You can have a seat.
8 A Thank you.
9 Q Sir, you were asked if you
10 cooperated by coming to my office and testifying
11 for deposition. Do you recall being asked those
12 questions by Mr. Bevere?
13 A Yes, sir.
14 Q But though you answered questions,
15 you indicated that on the night of April 25th,
16 2004 you didn't hear anyone at the firehouse
17 make any derogatory comments or remarks --
18 A That's correct.
19 Q -- to my clients, right?
20 A That's correct.
21 Q You went to the party at the
22 restaurant, right?
23 A Yes, sir.
24 Q You came back on the bus, right?
25 A Yes, sir.
00205
1 Q You walked through the parking
2 lot, right?
3 A Yes, sir.
4 Q And you're telling this jury --
5 what you want to tell this jury today under
6 oath, Detective --
7 A Yes, sir.
8 Q -- is that you didn't hear firemen
9 from the North End Firehouse yelling and
10 screaming disgusting, insulting, antigay words
11 in the direction of and at 988 Schopmann?
12 A That's correct.
13 Q Is that your testimony under oath?
14 A Yes, sir.
15 Q You're saying you didn't hear the
16 creeking of the fence when firemen jumped up on
17 it and started rocking it back and forth? Your
18 testimony is you didn't hear that?
19 A Yes, sir.
20 Q Your testimony is you didn't hear,
21 Detective, anything that sounded like gunshots?
22 That's your -- that's what you're telling this
23 jury?
24 A Yes, sir.
25 Q You're testifying under oath,
00206
1 Detective, that you didn't hear a fireman
2 running around the side of the house at 988
3 Schopmann, banging on it and saying, "Homos,
4 homos, homo"?
5 A No.
6 Q You didn't hear that?
7 A That's correct; I didn't hear it.
8 Q You're testifying that you didn't
9 hear your fellow firefighters of the North End
10 Firehouse that night admitting that they were
11 the ones who had been throwing -- throwing used,
12 semen-filled condoms over the fence, onto the
13 back porch of the house rented by deVries and
14 Carter? You're telling them you didn't hear
15 them admit that that night?
16 A That's correct.
17 Q You're telling them that you
18 didn't have sex in a car under the kitchen
19 window of the deVries Carter residence with a
20 woman and then take your condom and throw it
21 over the fence onto the back porch of the
22 deVries and Carter residence? You're telling
23 them that, right?
24 A That's correct.
25 Q You are telling them you weren't
00207
1 in your father's car one night having sex with a
2 woman and then threw your condom over that
3 fence; is that right?
4 A That's correct.
5 Q And are you smiling sir? Because
6 I see you smiling.
7 A No, sir.
8 Q Were you smiling?
9 A No.
10 Q What kind of car were you driving?
11 A At the time?
12 Q In April 2004.
13 A At the time I believe I was driving a
14 blue BMW 325.
15 Q Whose car was that? Who owned it?
16 A It was mine. I was paying the lease, but
17 it was in my dad's name.
18 Q And what was your father driving?
19 What car did he have?
20 A I believe he had a red pickup truck.
21 Not -- I'm not really sure. I don't remember.
22 Q Are you aware that the police did
23 a license check and a car came -- car that my
24 clients saw parked under their window came back
25 to your father? Are you aware of that?
00208
1 A No.
2 MR. BEVERE: Judge, can we come to
3 sidebar, please? Thank you.
4 (Whereupon, the following sidebar
5 discussion is held.)
6 JUDGE CURRAN: Mr. Bevere.
7 MR. BEVERE: Okay. My objection
8 is, once again, one of prejudicial effect,
9 probative value, prejudicial effect. What
10 Mr. Mullin is referring to is a police report
11 that was -- what Mr. Mullin is referring to was
12 a police report made on May 1st by Mr. -- I
13 believe it was even after May 1st, by Mr. Carter
14 reporting that he saw this BMW with the license
15 plate three months before. That's what it is.
16 Mr. Carter never reported a BMW
17 at the time he claims that he saw it. And --
18 and that's the impression that Mr. Mullin was
19 trying to give this jury with that question,
20 that his client reported seeing that car parked
21 under his porch or his window, where a condom
22 was thrown, three months later.
23 MR. MULLIN: Your Honor, I don't
24 know which police reports Counselor is reading.
25 I will tell you about the police report I read,
00209
1 which is -- I think it is around May 1. And we
2 can get the police report. My client, referring
3 back to the incident where there was a car
4 parked there and people were having sex and a
5 condom was thrown over, he got the license plate
6 number. So it's after the April 25th incident.
7 JUDGE CURRAN: That's what Mr.
8 Bevere said.
9 MR. MULLIN: I haven't implied
10 anything else, just --
11 JUDGE CURRAN: Oh, no, in
12 fairness, I would not have understood the
13 question that way. If you want to re-ask him
14 the question talking about the report of such
15 and such a date, reporting that such and such a
16 car was parked there, however the police report
17 phrases it, three months prior, two months
18 prior?
19 MR. MULLIN: I will see if I can
20 put my hand on the report and ask a specific
21 question.
22 JUDGE CURRAN: Thank you.
23 MR. BEVERE: Thank you, Judge.
24 (Whereupon, sidebar discussion is
25 concluded.)
00210
1 MR. MULLIN: D-74.
2 JUDGE CURRAN: Thank you.
3 BY MR. MULLIN:
4 Q Detective, let me show you what's
5 been marked as D-74. This is a police report by
6 Detective Sergeant Dominic DeGennaro. Do you
7 know -- do you know of Dominic DeGennaro, the
8 detective --
9 A Yes, I do.
10 Q -- at the Secaucus Police
11 Department? This is a report he wrote, reported
12 May 1, 2004. Do you see that?
13 A Yes, sir.
14 Q And in the last paragraph it says,
15 "Later in the evening, while checking the
16 victims' home, I ran into Tim Carter. Tim
17 provided me with a plate number of a vehicle
18 which was parked in the Fire Department lot on
19 the day he found a condom in his backyard." And
20 then he gives the plate number that Tim Carter
21 gave him, NJ VVV 86A. He stated that -- are you
22 familiar with that license plate? Ring a bell?
23 A Just the last -- the four, the --
24 Q The last four -- the V86A look
25 familiar to you?
00211
1 A Yes, sir.
2 Q What does it remind you of?
3 A My car.
4 Q Your car. He stated, "This
5 vehicle was a BMW." That's the car you were
6 driving April '04, right?
7 A Yes, sir.
8 Q And, "He didn't witness anyone
9 throw the condom in the backyard. He believes
10 this vehicle's occupants may have knowledge of
11 the incident or committed the act. And the
12 vehicle," the detective said, "comes back to
13 Robert A. Kickey of 25 Arn Terrace, Secaucus,
14 New Jersey, BMW 325." Do you see that?
15 A Yes, sir.
16 Q And my question to you was: Are
17 you -- until I just showed it to you, were you
18 aware that the -- that Detective DeGennaro had
19 connected your car up to this incidents?
20 A No, sir.
21 MR. BEVERE: Judge, I am going to
22 object as to the car, connected it up --
23 JUDGE CURRAN: Sustained.
24 Sustained.
25 MR. BEVERE: Thank you.
00212
1 BY MR. MULLIN:
2 Q Were you aware of this report
3 until I just showed it to you?
4 A No, I was not.
5 Q Detective DiGennaro after the date
6 of this report, May 1, '04, well, he never came
7 to you and asked you about the incident alleged
8 and referred to in this paragraph, right?
9 A That's correct.
10 Q No detective from the Secaucus
11 Police Department ever came to you and asked
12 you, "Hey, did you have sex under the window of
13 the Carter deVries residence and throw a dirty
14 condom onto the back porch?" No detective, no
15 police officer of the Secaucus Police Department
16 ever, ever came to you and asked you that
17 question, right?
18 A That's correct.
19 MR. MULLIN: Nothing further.
20 JUDGE CURRAN: Mr. Bevere.
21 RECROSS EXAMINATION BY MR. BEVERE:
22 Q Mr. Kickey, if a police officer
23 come to you and ask you if you threw a condom
24 onto Mr. deVries' and Mr. Carter's porch from
25 your vehicle, what would you have told them?
00213
1 A There is numerous times that I would go
2 out with my friend and stuff, I would -- that
3 would be -- I would leave my car in the parking
4 lot, so --
5 Q But did you ever throw a used
6 condom onto Mr. deVries' and Mr. Carter's --
7 A No, I didn't.
8 Q -- property?
9 A No, I did not.
10 Q Does your car look like a Stingray
11 or a TransAm?
12 A No, it does not.
13 Q It's a BMW 325i?
14 A That's correct.
15 Q You wouldn't mistake it for a
16 Stingray or a TransAm?
17 A That's correct.
18 Q Now, with regard to that window
19 that Mr. Mullin showed you, this is the
20 window -- oh, I apologize. This is the window
21 that looks out from the kitchen, correct?
22 A Yes, sir.
23 Q But it's not the window that --
24 that's not a window to the social room, correct?
25 A That's correct.
00214
1 Q Now, Mr. Kickey, when the bus came
2 back from the party in Cliffside Park, tell us
3 what you did.
4 A When I exited the bus, I proceeded inside
5 to the firehouse.
6 Q And when you left the bus, did you
7 walk directory into the firehouse?
8 A Yes, I did.
9 Q All right. And did you hear any
10 yelling as you were walking from the bus into
11 the firehouse?
12 A No, I did not.
13 Q And then how long were you in the
14 firehouse for?
15 A I have no idea.
16 Q You don't remember --
17 A I don't remember.
18 Q -- that far back?
19 A I don't remember.
20 Q When you were in the firehouse,
21 did you hear any yelling outside?
22 A No, I did not.
23 Q Okay. Thank you.
24 MR. BEVERE: No further questions.
25 JUDGE CURRAN: Mr. Mullin.
00215
1 FURTHER REDIRECT EXAMINATION BY MR. MULLIN:
2 Q And it's your testimony that when
3 you were in the parking lot coming back from the
4 party that night you didn't hear a thing, any
5 obscene language directed at the residents of
6 988 Schopmann, right?
7 A That's correct.
8 Q Forget when you were in the
9 firehouse. When you were in the parking lot,
10 you didn't see firemen -- fellow firefighters
11 jump up on the fence and try to tear the fence
12 down, right?
13 A That's correct.
14 Q When you were in the parking lot
15 that night, you didn't hear shots fired, right?
16 A That's correct.
17 Q When you were in the parking lot
18 that night, you didn't see a fellow firefighter
19 banging on the side of the house yelling,
20 "Homo, homo, homo"?
21 A That's correct.
22 MR. MULLIN: No further questions.
23 JUDGE CURRAN: Mr. Bevere, any
24 questions?
25 MR. BEVERE: No, thank you, Judge.
00216
1 JUDGE CURRAN: Is there anyone on
2 the jury who has a question for this witness?
3 If so, please raise your hands; and we'll take
4 the card. I see no hands raised.
5 Thank you, sir. You may step
6 down.
7 THE WITNESS: Thank you, Your
8 Honor.
9 (Whereupon, the witness is
10 excused.)
11 JUDGE CURRAN: May I see counsel
12 at sidebar, please?
13 MR. BEVERE: Sure.
14 JUDGE CURRAN: Thank you. It can
15 be off the record, Tracey.
16 (Whereupon, a discussion is held
17 off the record.)
18 JUDGE CURRAN: Ladies and
19 Gentlemen, we will take the afternoon break.
20 The lawyers have something to do, so we will
21 take 15-minute break. Thank you very much.
22 Off the record.
23 (Whereupon, a brief recess is
24 taken.)
25 JUDGE CURRAN: We will go back on
00217
1 the record. Have you worked out the problems,
2 or are there still subject matter --
3 MR. BEVERE: I think we have to go
4 on the record with it, Judge, because --
5 JUDGE CURRAN: We are on the
6 record.
7 MR. BEVERE: -- they are
8 substantive.
9 JUDGE CURRAN: We are on the
10 record.
11 MR. BEVERE: They're not
12 extensive, but I want to go on the record. If
13 we go to page 29 of the deposition --
14 JUDGE CURRAN: This is the
15 deposition?
16 MR. BEVERE: I'm sorry, of Frank
17 Walters, January 4th, 2007.
18 JUDGE CURRAN: Do I need a copy to
19 follow along?
20 MR. BEVERE: I will be happy to
21 give you one, Judge.
22 JUDGE CURRAN: Thank you very
23 much.
24 MR. BEVERE: You're welcome, Your
25 Honor.
00218
1 JUDGE CURRAN: Thank you.
2 MR. BEVERE: All right. Judge, on
3 page 29, starting on line 6, the question is
4 asked, "Does a lieutenant within the Secaucus
5 Fire Department have responsibility for setting
6 policy regarding discrimination, harassment and
7 bias?"
8 Mr. Shahdanian, who is
9 representing Frank Walters at the time, objects
10 to the question. "You can answer it."
11 "Can you repeat that?"
12 "Sure."
13 And then the attorney questioning
14 says, "Let me give you an example." And then
15 says, "If we were to use a company, instead of a
16 Fire Department, within that company different
17 individuals have different responsibilities for
18 various tasks; and most companies there is a
19 human resource person and that person" -- it
20 goes on and on and on. I don't think I need to
21 read it all to Your Honor. But essentially,
22 that's the attorney testifying as what happens
23 in most companies. I don't think it's properly
24 phrased question.
25 JUDGE CURRAN: Well, the issue
00219
1 seems to me to be line 24. "I'm trying to find
2 out whether lieutenants within the Secaucus Fire
3 Department have that type of responsibility."
4 And the answer was, "In that
5 respect, I would say no," correct?
6 MS. SMITH: Judge, I have
7 absolutely no problem leaving the question as,
8 "Does a lieutenant within the Secaucus Fire
9 Department have responsibility for setting
10 policy regarding discrimination, harassment and
11 bias" and going right to his answer, "I would
12 say no." If -- if counsel just wants to leave
13 out --
14 MR. BEVERE: Yeah.
15 MS. SMITH: -- the explanation.
16 MR. BEVERE: Resolved.
17 MS. SMITH: I have no problem with
18 that.
19 JUDGE CURRAN: Resolved.
20 MR. BEVERE: Resolved.
21 JUDGE CURRAN: Now, presumably the
22 rest of 30 is going to be read, correct?
23 MS. SMITH: I certainly --
24 MR. BEVERE: Counsel wanted to
25 read it all the way to 31/17.
00220
1 JUDGE CURRAN: I just wanted to
2 make sure because logically I wouldn't see why
3 not.
4 MR. BEVERE: Now, Judge, I want to
5 just -- I want to be just clear for the record.
6 We had had argument at sidebar before, which I'm
7 assuming was on the record; and my objection as
8 to the relevancy of harassment, bias,
9 discrimination training stands.
10 JUDGE CURRAN: It stands. I
11 wouldn't say it's been resolved because that's
12 an issue that I think we are going to hear again
13 because the plaintiffs case, the jury charge, et
14 cetera, et cetera. But it stands. And I'm sure
15 Tracey, who is much more efficient than I, has
16 it down verbatim.
17 MR. BEVERE: All right. Now,
18 Judge, to be more specific, however, when we go
19 to page 35, this is a little different of a
20 situation. And I know it's talking about
21 discrimination, harassment or bias; but the
22 question is phrased -- and there was objections
23 to the question -- "As the Fire Chief, was it
24 your responsibility to monitor whether there
25 were any incidents or problems within the
00221
1 Secaucus Fire Department regarding
2 discrimination, harassment or bias?"
3 And the next question, "Were
4 there any mechanisms in place to prevent bias
5 discrimination within the Secaucus Fire
6 Department?"
7 So this -- this is more specific
8 to what I was talking about before, Your Honor,
9 which is here we are asking about policies,
10 practices and procedures to prevent
11 discrimination within.
12 JUDGE CURRAN: Internally.
13 MR. BEVERE: This would be as
14 if -- if Mr. deVries or Mr. Carter were
15 employees of the Fire Department and they
16 were -- claimed that they were being
17 discriminated against or harassed on account of
18 their sexual orientation. But it's not relevant
19 to the claims in this case, Judge, whether there
20 was policies, practices or procedures with
21 regard to harassment, discrimination within the
22 fire companies.
23 JUDGE CURRAN: Miss Smith.
24 MS. SMITH: Judge I -- I -- that's
25 way too narrow a reading. If a firefighter is
00222
1 accused of discrimination, the question is,
2 within the department is there a policy to deal
3 with that? The word "within" doesn't
4 necessarily mean only if the allegation comes
5 within.
6 If you will you look at the very
7 first question, "was it your responsibility to
8 monitor whether there were any incidents or
9 problems" at the top of page 35. I mean, it --
10 the word "within" grows out of that question,
11 "any incidents or problems."
12 And then she is asking him, as
13 the Fire Chief, if someone complains, is there a
14 monitoring, is there -- and you can see on page
15 37 that everybody understood what was -- what
16 was being talked about. 37, starting at line
17 14, it -- it really clarifies what this colloquy
18 is about.
19 JUDGE CURRAN: Line 12 on 37?
20 MS. SMITH: On page 37, if you --
21 yeah, it starts at line 12; but she gives an
22 example that clearly is not talking about one
23 firefighter complaining about another
24 firefighter. You know --
25 JUDGE CURRAN: But I would say
00223
1 it's not really clear until you get to 36. And
2 frankly --
3 MS. SMITH: The top of 37, Your
4 Honor.
5 JUDGE CURRAN: That's what I said,
6 until you get to 37.
7 MS. SMITH: The very first
8 question at the top of 35 --
9 MR. BEVERE: And Judge, if I can
10 also step back --
11 JUDGE CURRAN: Hold on.
12 MR. BEVERE: -- look at what we're
13 reading before that. I think it makes it clear.
14 JUDGE CURRAN: I got it. With all
15 due respect, I think reading "within" is a fair
16 reading that it means internal. Now, it does
17 clarify it when you get to page 37; but it
18 really doesn't before that because the
19 preposition to be used would have been "by," "by
20 the Fire Department," not "within the Fire
21 Department." Those are two very different
22 words.
23 I can understand your argument,
24 but I think that reading "within" to be an
25 internal policy or a policy dealing with
00224
1 internal complaints is as fair a reading as
2 going the other way on it.
3 But page 37 does give an example
4 that makes it clear that the meaning, at least
5 on page 37, is by members of the department.
6 MR. BEVERE: And then -- and then,
7 from 37 to 38 they want to read it. And I think
8 that, you know, we want to read 37 through 38; I
9 think that that's fine.
10 MS. SMITH: But Judge, are you --
11 I don't understand. Is the department claiming
12 the fact that the Fire Department didn't even
13 have a policy for monitoring discrimination in
14 its own department is not relevant?
15 JUDGE CURRAN: I, frankly, have to
16 back up even farther than that. I don't know
17 what you are proposing to read and what you're
18 objecting to.
19 MS. SMITH: I'm so sorry, Judge.
20 I can give you a markup list.
21 JUDGE CURRAN: No, no, if you can
22 just give me on pages 33 through 37, that's all.
23 MS. SMITH: It's 35/1 through
24 38/13.
25 JUDGE CURRAN: Okay. You did say
00225
1 that okay. Inclusive?
2 MS. SMITH: Inclusive.
3 JUDGE CURRAN: Thank you.
4 MS. SMITH: Except we took out
5 colloquies and counsel.
6 JUDGE CURRAN: Okay. Mr. Bevere,
7 is your argument that even if there was not a
8 policy in regard to bias or discrimination
9 within, that that's not relevant?
10 MR. BEVERE: My position is that
11 whether there are policies with regard to
12 harassment, discrimination within the Secaucus
13 Fire Department is not relevant to this case.
14 That's my position.
15 JUDGE CURRAN: Miss Smith.
16 MS. SMITH: I would argue I have a
17 very high standard of proving deliberate
18 indifference. I -- we have been stuck with a
19 very high standard. Mr. Bevere said the word
20 "color of State law" about six times in front of
21 this jury. Certainly, the -- certainly, the
22 policies of this Town, if they don't even have a
23 policy for how they treat each other with regard
24 to bias and discrimination, I think that in
25 light of the burden that we have, we should --
00226
1 it's a fair circumstantial evidence that this
2 Town was not that concerned with preventing
3 discrimination.
4 JUDGE CURRAN: Mr. Bevere.
5 MR. BEVERE: Number one, Judge, as
6 far as the Town goes -- as far as the Town goes,
7 there was a policy regarding harassment,
8 discrimination. The employees had policies.
9 They received the training.
10 Number two, with -- once again I
11 will stand by what I said earlier. This is not
12 a claim by someone within the Fire Department
13 saying that they were harassed or discriminated
14 against. There is no evidence of prior acts of
15 harassment or discrimination from within the
16 Secaucus Fire Department. So, therefore, there
17 was nothing for Secaucus to be deliberately
18 indifferent to --
19 MS. SMITH: Well, Judge,
20 certainly --
21 MR. BEVERE: -- in that regard.
22 MS. SMITH: -- they trained the
23 firemen about how to treat one another, one can
24 assume it may have actually had an effect on how
25 they treated others outside the Fire Department.
00227
1 Why did they send them to sensitivity training
2 after 4/25, if that's not the case? And in
3 fact, contrary to what Mr. Bevere --
4 JUDGE CURRAN: Like fixing a stair
5 after someone trips.
6 MR. BEVERE: Exactly. Here is a
7 situation where they're claiming the Town was
8 deliberately indifferent throughout. Now here
9 we have the Town saying, you know what, let's --
10 let's let everybody know in the Town completely,
11 you know, that it's not okay to do this type of
12 thing.
13 But Judge, once again, we are
14 getting back to what we talked about. This is
15 not -- this is not a hostile work environment
16 case. Now -- and for them to say no policy
17 regarding harassment, the Town had a code. And
18 in that code there were conduct unbecoming rules
19 and regulations.
20 Now, they may argue that the
21 Town -- they may argue what they will with
22 regard to whether the Town was lackadaisical,
23 whatever they want to argue. But with regard to
24 harassment and discrimination within the
25 Secaucus Fire Department, has nothing to do with
00228
1 this case.
2 And the -- and the Town -- and
3 the Secaucus Fire Department had a code. Had a
4 code that said you had to go out and conduct
5 yourself appropriately and properly when dealing
6 with members of the public. It did say that.
7 That's what the code said, and that was the
8 policy.
9 MS. SMITH: Judge, actually --
10 JUDGE CURRAN: Now we have two
11 things. We have got that "within" is not
12 relevant. And we have got -- and there was a
13 policy in regard to without. But all the
14 answers here say there was no policy --
15 MS. SMITH: Right.
16 JUDGE CURRAN: -- in or out, as
17 far as I read these answers --
18 MS. SMITH: Exactly.
19 JUDGE CURRAN: -- correct?
20 MS. SMITH: Yes, this is the Chief
21 of Police -- the Chief -- the Fire Chief, Judge.
22 JUDGE CURRAN: I mean, he doesn't
23 say there is a policy. He says people made
24 complaints, that we have to address the
25 complaints.
00229
1 MR. BEVERE: Because the
2 question -- because the question was phrased
3 such as: Was there -- is there -- do you have a
4 sexual harassment discrimination policy in the
5 workplace? And what the Chief was saying, I am
6 not aware or there is no written sexual
7 harassment policy applicable to the Fire
8 Department that I know of.
9 It's only deliberately
10 indifferent not to have that policy if you have
11 prior acts of harassment or discrimination from
12 within the Fire Department that the -- that the
13 Town is ignoring and then there is another act
14 of harassment, discrimination from within the
15 Fire Department as a result.
16 But -- but this -- whether or not
17 there was sexual harassment policies in place
18 for the Fire Department is -- from within the
19 Fire Department is not relevant to this case
20 because this is not hostile work environment
21 case. Mr. deVries and Mr. Carter didn't work
22 for the Fire Department.
23 JUDGE CURRAN: Okay. So then
24 there is not a policy or -- or -- when you just
25 made your previous comments, did you mean now
00230
1 there is a policy but there wasn't then or --
2 MR. BEVERE: I'm -- I'm not aware
3 of whether there is a formal written sexual
4 harassment policy for -- you know,
5 employer/employee sexual harassment policy with
6 the Fire Department. I can tell you they were
7 sent to sensitivity training after this incident
8 in question.
9 JUDGE CURRAN: Okay. Maybe I
10 misunderstood.
11 MR. BEVERE: And that is -- that
12 is part of my defense, so to speak, as to
13 deliberate indifference.
14 MS. SMITH: Let me tell
15 you something about that sensitivity training,
16 Your Honor. It was used as within. They were
17 using it as a defense; it is a great thing he
18 said it. They are using it as a defense, and
19 that was about within. We can't hear that --
20 about within prior to that, which didn't occur
21 until after April 25th, 2004.
22 JUDGE CURRAN: It was within?
23 MR. BEVERE: It was
24 all-encompassing. It was how you deal with
25 members of the public; it had to do with --
00231
1 MR. MULLIN: Why don't we get the
2 documents?
3 MR. BEVERE: But now we get back
4 to the fixing of the steps situation.
5 JUDGE CURRAN: Is it in one of the
6 exhibits?
7 MR. MULLIN: In the documents.
8 You are using it as a defense.
9 MR. BEVERE: No, no, no, no, no,
10 that -- Judge, that -- that sexual harassment
11 policy was produced in discovery because at the
12 time there was an LAD claim against the Town --
13 MR. MULLIN: I'm --
14 MR. BEVERE: -- Town of Secaucus.
15 That's why it was there. And we were asked to
16 produce that policy. And we produced that
17 policy so that the Town did have policies and
18 practices and procedures in regard to sexual
19 harassment --
20 JUDGE CURRAN: So that was the
21 Town, not the Fire Department?
22 MR. BEVERE: That was the Town.
23 MS. SMITH: I thought we were
24 talking about the sensitivity training when we
25 talked about looking at it, Your Honor. The
00232
1 sensitivity training pertained --
2 JUDGE CURRAN: For the Fire
3 Department?
4 MS. SMITH: Yes.
5 JUDGE CURRAN: Is or isn't it
6 different than for the Town?
7 MR. BEVERE: My understanding --
8 and I believe this is confirmed with the
9 documents -- that everybody was required to go
10 to this sensitivity training. Town employees,
11 volunteer firefighters, everybody was required
12 to go.
13 MS. SMITH: Did somebody say that
14 in deposition?
15 MR. MULLIN: Do you have some
16 evidence of that? Maybe it's so. I am just
17 working with the evidence, Your Honor. Why
18 don't we just take a moment and try to find --
19 this defense they are using, which is the
20 sensitivity training that the firemen were
21 required to go to right after the 4/25 --
22 MR. BEVERE: Well, Judge, you
23 know, maybe I shouldn't phrase it in terms of a
24 defense; but certainly, I believe it's
25 evidential as to whether or not we were
00233
1 deliberately indifferent. In other words, if we
2 said we are going to send everybody to
3 sensitivity training so that we can at least
4 send the message that we weren't condoning,
5 sanctioning, authorizing what had happened in
6 that Fire Department parking lot, very relevant
7 to that issue.
8 I -- I don't think it's a defense
9 because, quite frankly, on -- on a 1983 claim,
10 affirmative defenses -- I mean, it's evidence as
11 to the fact that we're not -- I don't have to --
12 I don't have an affirmative defense that I am
13 not deliberately indifferent. They have to
14 prove deliberate indifference. That's
15 evidential on the fact that we were not
16 deliberately indifferent. The fact that we did
17 make a statement to our employees and we did
18 make a statement to our volunteer firefighters
19 that this type of conduct was not appropriate.
20 And I will, you know -- I will
21 leave it at that. I won't step back from what
22 we said earlier, which is, you know, quite
23 frankly, I think the policy practice and
24 procedure that prevents what happened in the
25 parking lot that night is a criminal law, 2C.
00234
1 MR. PARIS: Your Honor, I am just
2 going to add one thing; and that is this
3 deposition was taken while certain claims were
4 part of this case that are no longer part of
5 this case.
6 MR. BEVERE: Right. This was the
7 LAD claim that is not part of this case anymore.
8 MR. PARIS: And it's clear. It's
9 clear, you know, what's being discussed here.
10 At one point the witness says, "I really don't
11 understand what you are asking me, since," you
12 know, "there was no policy." And then he says,
13 I think at 30 -- I think he said, you know, at
14 one point, well, not knowing, kind of not
15 understanding what you are talking about, I
16 guess, no.
17 But it's so clear that at 36/2 he
18 says, "within" -- "Not specifically for bias
19 within the department." You know, it's so clear
20 what you are talking about. You are talking
21 about interrelationships between employees and
22 how we stretch that.
23 And frankly, the deliberate --
24 for counsel to argue that somehow this is such a
25 huge standard because they have to prove
00235
1 deliberate indifference, frankly, every step of
2 the way they are trying to make this no standard
3 at all, that anything that you didn't do,
4 whether there is a standard of conduct or not,
5 somehow proves deliberate indifference.
6 MR. MULLIN: Your Honor, the
7 defendants have admitted here in this argument
8 that they are using and have been using their
9 sensitivity training program that took place in,
10 I guess it was, June, July, August of 2004 as a
11 defense.
12 MR. BEVERE: As evidence, Judge.
13 MR. MULLIN: The word was --
14 MR. BEVERE: I misspoke when I
15 said, "defense" because I don't have to have an
16 affirmative defense of not being deliberately
17 indifferent. That's the plaintiff's burden to
18 prove, not mine.
19 MR. MULLIN: Please don't
20 interrupt. Please let me finish. Let's assume
21 that you now have abandoned your own words and
22 you are not saying, "defense." Let's assume for
23 purposes of my argument you changed your
24 position and now you're saying it's evidentiary.
25 Let me work with that position.
00236
1 If it's evidentiary, that
2 sensitivity training, that, as I understand it,
3 based on the documents that were provided to me
4 in discovery, had to do with workplace sexual
5 harassment, if it's their position that that's
6 evidentiary, then why isn't it evidentiary that
7 before April 25th, 2004 they didn't have any
8 such internal policy or procedure in place?
9 And you know what, I agree with
10 them. It does make sense for them to come in
11 here and as a defense say, "Look, after this
12 happened we gave them training about sexual
13 harassment internally to sensitize them." It's
14 a defense. I think it fails. The jury will
15 decide that.
16 Then, if that's a defense, why
17 doesn't it make sense to say, "Well, before that
18 you had no such policy or training"? Here is
19 why in a simple practical sense. Let's suppose
20 you have some guy at work and he is homophobic.
21 Okay. And what he does is he harasses or
22 humiliates gay people who work under him or with
23 him. Is it such a stretch of the imagination to
24 imagine when that lieutenant or captain of the
25 firefighters deals with gay members of the
00237
1 public, he will carry the same attitudes
2 outside? Of course not. That's why it's
3 relevant to -- when -- when Chief Walters said
4 we have no policy concerning sexual --
5 concerning discrimination, harassment within the
6 Fire Department, that means that discriminators
7 were free to do what they want.
8 JUDGE CURRAN: Or it means there
9 was no need for it because there never was any
10 allegation of discrimination within the
11 department. That's just as --
12 MR. MULLIN: I --
13 JUDGE CURRAN: -- fair an
14 inference, I understand not from your viewpoint.
15 MR. MULLIN: Your Honor.
16 JUDGE CURRAN: But a reasonable
17 juror could also decide that, if it was argued.
18 MR. MULLIN: I suppose they can
19 argue that to the jury, Your Honor. I don't see
20 that problem, making that argument to the jury
21 through their witnesses. I would argue and
22 preserve for the record that's directly contrary
23 to Lehmann. And Lehmann is a case that's very
24 broad. And it's the Supreme Court saying in
25 this day in age if a company doesn't have an
00238
1 antidiscrimination policy, if a company doesn't
2 have a vehicle for encouraging people to come
3 forward with complaints of prejudice,
4 harassment, bias, discrimination, then that's
5 evidential on the issue of whether or not the
6 company, itself, is discriminatory or should be
7 held liable for discrimination.
8 And let me remind the Court, Your
9 Honor, something I -- I'm probably going to
10 repeat a lot. My complaint and this case is
11 about acts of harassment and discrimination
12 against my clients because they were gay men
13 under your standard about the failure of the
14 Town through its officials, through its leaders,
15 to take action to protect, prevent or remediate.
16 They showed deliberate indifference in all
17 regards. That's what this case is about.
18 But we shouldn't think for a
19 minute that this is not a Civil Rights case
20 brought under the Civil Rights provisions of
21 Article I and Article 1 sub 1 and 1 sub 5 of the
22 Constitution about discrimination and
23 harassment.
24 So Lehmann is important. These
25 principles are important when you have a company
00239
1 that has no policy at all. That's so extreme in
2 the year 2004, '3, '2. That's so extreme and --
3 and outlandish that a jury has to be allowed, if
4 they care to, to infer that that shows
5 deliberate indifference to whether or not the
6 fire company, the Fire Department is engaging in
7 discrimination, deliberate indifference to
8 whether or not the Fire Department engaged in
9 discrimination.
10 JUDGE CURRAN: But isn't their
11 argument not that it necessarily changes --
12 their argument is not what you have just said;
13 their argument is that the Town had a policy,
14 the Fire Department did not?
15 MR. MULLIN: But the Town --
16 JUDGE CURRAN: Why wouldn't apply
17 to the Fire Department is the next question?
18 But that's not before me. Is that your argument
19 or part of your argument, that the Town did have
20 a policy?
21 MR. BEVERE: The Town -- well,
22 Judge, when I -- when I --
23 JUDGE CURRAN: Yes or no?
24 MR. BEVERE: When I raised the
25 issue of the harassment, discrimination policy
00240
1 in the Town, there was an LAD claim in this
2 case --
3 JUDGE CURRAN: I understand that,
4 but I'm --
5 MR. BEVERE: -- that no longer
6 exists.
7 JUDGE CURRAN: I'm trying --
8 MR. BEVERE: What they were
9 arguing is -- one of their claims against the
10 Town was that the Town didn't have a harassment,
11 discrimination policy. Well, the Town had one.
12 MR. MULLIN: Your Honor, the --
13 MR. BEVERE: It was not applicable
14 to volunteer firefighters --
15 JUDGE CURRAN: Okay. That's the
16 answer, then.
17 MR. BEVERE: -- for reasons that
18 we can get into.
19 JUDGE CURRAN: I have the answer.
20 MR. BEVERE: Okay.
21 MR. MULLIN: Okay.
22 JUDGE CURRAN: Why was it not
23 applicable to --
24 MR. MULLIN: That's amazing.
25 JUDGE CURRAN: -- volunteer? I am
00241
1 not saying this by way of decision. Just,
2 logically, that doesn't make sense.
3 MR. BEVERE: I don't -- Judge, I
4 don't --
5 JUDGE CURRAN: Was it applicable
6 to the Police Department? I'm not holding you
7 responsible. Just wondering if you know.
8 MR. BEVERE: It was applicable to
9 the Police Department? They were paid Town
10 employees and they --
11 JUDGE CURRAN: Not the Fire
12 Department because they were volunteers?
13 MR. BEVERE: In addition, they
14 had -- they had a general antiharassment order,
15 Order 941.
16 MR. MULLIN: The Police
17 Department.
18 MR. BEVERE: The Police
19 Department.
20 JUDGE CURRAN: Right, right.
21 MR. MULLIN: Not the Fire
22 Department.
23 MR. BEVERE: Correct. I am not
24 saying the Fire Department.
25 JUDGE CURRAN: I am trying to
00242
1 think of something analogous to a volunteer Fire
2 Department or something in another Town.
3 MR. BEVERE: In that order -- in
4 that order with the Police Department dealt with
5 employee on employee harassment, discrimination.
6 That's what it dealt with.
7 JUDGE CURRAN: Let's get back.
8 MR. BEVERE: If a police officer
9 committed a crime, harassed a citizen, they
10 would come down, file an IA complaint; and there
11 would be an IA investigation.
12 JUDGE CURRAN: Let's get back to
13 the exact wording here that's objected to. It
14 seems to me at this point that we basically have
15 the questions as they're asked. You can argue
16 that "within," whatever you want to argue. If
17 we leave this in, you're free to say the
18 questions were within, they meant within the
19 department. And then there may or may not be a
20 witness that comments on that.
21 Or that another way to look at
22 the question was that the question, which was
23 clarified on page 37, was really not meant to
24 be "within"; it was meant to be "outside of" or
25 "by members toward the public."
00243
1 But I think that it's fair to
2 leave in the "within" questions because I don't
3 think they're misleading. I don't think they're
4 irrelevant. I don't think they're overly
5 prejudicial. And I think they can be argued
6 through either argument at the end or
7 questioning of some of your witnesses who will
8 be brought in. So I am going to leave it that
9 way, but I will note the objection of the
10 defense on the record.
11 What else?
12 MR. BEVERE: Let me see, Judge. I
13 just -- I made my notes. Judge, my objection is
14 preserved?
15 JUDGE CURRAN: Yes, sir.
16 MR. BEVERE: Thank you.
17 JUDGE CURRAN: That's on the
18 record already.
19 MR. BEVERE: Thank you. On page
20 100, starting with line 5. I don't see what the
21 relevance is to whether Frank Walters changed
22 his mind as to whether it was an antigay remark
23 at his deposition.
24 MS. SMITH: It starts, Your Honor,
25 at page 97/23 --
00244
1 MR. BEVERE: That it does.
2 MS. SMITH: -- whether -- what --
3 what this Chief of the Fire Department considers
4 to be an antigay remark.
5 JUDGE CURRAN: So what is the
6 objection? Just to line 5?
7 MR. BEVERE: Only -- only 5
8 through 18. What is the relevance as to whether
9 or not he changed his opinion? I am not asking
10 to excise any other part of that reading.
11 MS. SMITH: I have no objection to
12 that, Your Honor --
13 JUDGE CURRAN: All right.
14 MS. SMITH: -- just to move things
15 along.
16 JUDGE CURRAN: Thank you.
17 MS. SMITH: 100/5 to 18?
18 JUDGE CURRAN: Yes.
19 MS. SMITH: Out.
20 JUDGE CURRAN: And that's it, or
21 are there others?
22 MR. BEVERE: Oh, the last one,
23 Judge. Just on page 125, line 11, there is a
24 reference to the Town's JIFF representative. I
25 don't know what the -- 125, line 11, I don't
00245
1 know if the jury --
2 MS. SMITH: I took that out. That
3 was one of the ones that we omitted when we went
4 through them the other day for Walters.
5 MR. BEVERE: Yeah, you took that
6 out?
7 MS. SMITH: Yeah. Remember when
8 we said -- we went through this the other day.
9 You keep using the earlier version.
10 MR. BEVERE: So you are going to
11 stop at 123?
12 MS. SMITH: 123. Then we go right
13 to 129.
14 MR. BEVERE: To 138?
15 MS. SMITH: And that's it.
16 MR. BEVERE: Oh, all right, Judge.
17 Done.
18 JUDGE CURRAN: We will bring out
19 the jury.
20 MR. BEVERE: Sorry. With regard
21 to the manner in which this is going to be done,
22 I -- I let it go with regard to the Patricia
23 Hjelm reading, but I would ask that the
24 deposition be read without inflection. Okay?
25 JUDGE CURRAN: Why did I know you
00246
1 were going to say that, Mr. Bevere?
2 MR. BEVERE: Quite frankly, the
3 only person in this room that was in this room
4 when the dep was taken was me; and I can't tell
5 you the inflection that he used. So I just ask
6 it be read without inflection.
7 JUDGE CURRAN: Do you wish to
8 be heard, Mr. Mullin? It significantly lowers
9 your chance for an Oscar but --
10 MR. MULLIN: I was looking for an
11 Oscar, hoping for one. But look, I am just
12 going to read it. I don't want to read it and
13 be boring, but I am not going to use inflection
14 to impart meaning other than the words. I
15 just -- I don't -- jurors can get bored with dep
16 readings, but I am sure you will find I will do
17 nothing untoward. I have done this in all too
18 many trials, all too many times. I will be
19 careful not --
20 JUDGE CURRAN: I have had that
21 objection one time before. Actually, the
22 parties agreed. In most cases I don't think
23 they would, but I had a -- it was a man being
24 questioned. I had a male law clerk who had
25 really not been in and out of the courtroom much
00247
1 and/or they are not allowed to be around. So
2 there was a request -- I am not doing that here.
3 There was a request that my law clerk read, and
4 everybody agreed that that would be fair. And
5 it worked out. But I will sustain your request.
6 MR. BEVERE: Wasn't an objection.
7 JUDGE CURRAN: No, that's why I
8 said, "request."
9 MR. BEVERE: Thank you, Judge.
10 JUDGE CURRAN: Thank you. Thank
11 you.
12 MR. MULLIN: Judge, I just came
13 off a trial in Salem, New Jersey where everybody
14 sounds like they are from West Virginia. And I
15 will go off the record.
16 (Whereupon, a discussion is held
17 off the record.)
18 JUDGE CURRAN: Shall we bring out
19 the jury, please? Again, so -- we have a motion
20 after this, but I just want to make sure -- they
21 have to wait for the trial.
22 MS. SMITH: The next two are much
23 shorter.
24 JUDGE CURRAN: I am not going to
25 rush anybody.
00248
1 MS. HAWKS: Jurors are
2 approaching.
3 (Whereupon, the jury is brought
4 into the courtroom.)
5 JUDGE CURRAN: Thank you, Ladies
6 and Gentlemen. We appreciate your patience
7 while we argued out the legal issues.
8 Mr. Mullin, are you going to call
9 another witness at this point?
10 MR. MULLIN: Yes, Your Honor. I
11 am going to read from the deposition of the Fire
12 Chief Frank Walters. And I will pretend to
13 be Mr. Walters and sit here. And Miss Smith
14 will read questions.
15 JUDGE CURRAN: Okay. Thank you.
16 Again I will remind you depositions are taken
17 under oath. And what is going to be read is
18 going to be read verbatim. Everyone has copies
19 to make sure that if there are any issues, those
20 are brought up. And I'm sure there will not be.
21 I will just indicate to you that
22 I looked at some of the readings, and there is
23 language in these readings that is somewhat
24 difficult. Please understand that Plaintiffs'
25 counsels are simply reading what is in the
00249
1 deposition. Thank you.
2 Miss Smith.
3 MS. SMITH: Thank you, Your Honor.
4 Starting at page 10, going to 11.
5 READING OF PORTION OF FRANK WALTERS' DEPOSITION
6 Q At some point in time you were the
7 Fire Chief of Secaucus; is that correct?
8 MR. MULLIN: Chief Walters
9 answers.
10 A That is correct.
11 Q At what period of time was that?
12 A I was full Chief from 2003, 2004.
13 Q Just one year?
14 A It's two years. January 1st, 2003 to
15 December 31st, 2004 I was full Chief.
16 MS. SMITH: Page 16.
17 Q What's the regular firefighters
18 compensation? What is it currently?
19 A Currently there is a stipend for
20 attaining a percentage of the alarms. And
21 that's 300 per month. And it's broken down
22 quarterly. So if you make your percentages,
23 then it's $900 every quarter. Also, there is a
24 yearly clothing allowance.
25 Q Any other benefits?
00250
1 A That's it.
2 MS. SMITH: 24. Line 24 -- I'm
3 sorry, 24, line 9.
4 Q During the time that you were a
5 lieutenant with the Secaucus Fire Department did
6 you ever receive training regarding bias or
7 discrimination?
8 A No.
9 Q During the time that you were a
10 captain with the Secaucus Fire Department did
11 you ever receive training regarding bias or
12 discrimination?
13 A Not through the Town. I did through my
14 job.
15 Q But not as a volunteer fireman?
16 A No.
17 Q When you were Secaucus battalion
18 chief did you receive any training regarding
19 bias or discrimination?
20 A No.
21 Q And when you were deputy chief of
22 the Secaucus Fire Department did you receive any
23 training regarding bias or discrimination?
24 A No.
25 Q When you were deputy --
00251
1 MS. SMITH: It's a repeat.
2 Q When you were deputy chief did you
3 receive any training regarding bias or
4 discrimination?
5 A No.
6 Q When you were the Fire Chief for
7 the Secaucus Fire Department did you receive any
8 training regarding bias or discrimination?
9 A Yes.
10 Q When was that?
11 A After the incident that we're here for.
12 Q So after the incident which took
13 place on --
14 MR. MULLIN: April --
15 MS. SMITH: It says, "October."
16 We can agree it's --
17 Q -- April 25th, 2004 at 988
18 Schopmann Drive in the North End Firehouse; is
19 that correct?
20 A Correct.
21 MS. SMITH: 26.
22 Q I have just asked you whether you
23 attended any training regarding bias or
24 discrimination during the times that you held
25 various positions. I am going to ask the same
00252
1 question with respect to did you ever organize
2 training regarding harassment, discrimination or
3 bias when you were a lieutenant, captain,
4 battalion chief or deputy chief?
5 A No.
6 Q When you were the Chief, the fire
7 Chief you arranged for training after the
8 incident of April 25th, 2004?
9 A Correct.
10 MR. MULLIN: 29.
11 MS. SMITH: We are skipping over
12 to --
13 MR. MULLIN: 29, line 6.
14 MS. SMITH: And the answer is at
15 30, line 2.
16 Q Does a lieutenant within the
17 Secaucus Fire Department have responsibility for
18 setting policy regarding discrimination,
19 harassment and bias?
20 A I would say no.
21 Q What about captain?
22 A No.
23 Q Battalion chief?
24 A No.
25 Q Deputy chief?
00253
1 A No.
2 Q Full Fire Chief?
3 A No.
4 Q Who has that responsibility within
5 the Secaucus Fire Department?
6 A That would come through the Town, itself.
7 Q And when you say, "through the
8 Town itself," what do you mean?
9 A People who write our rules and
10 regulations, which would be the Mayor, Council,
11 Town Administrator.
12 Q How would those rules and
13 regulations be communicated to you as the Fire
14 Chief?
15 A They would call us in for meetings and
16 suggest this is what we should be doing, this is
17 what we have to implement.
18 Q And how would you then communicate
19 that policy to the members of the Secaucus Fire
20 Department? When you were a Fire Chief did you
21 receive instruction from the Town of Secaucus
22 regarding policies with regard to harassment,
23 discrimination or bias?
24 A Yes, and that was after the incident, as
25 I said.
00254
1 Q Prior to that incident you
2 received no information from the Town of
3 Secaucus regarding policies with respect to
4 discrimination, bias or harassment; is that
5 correct?
6 MR. MULLIN: Chief Walters
7 answers.
8 A Correct.
9 MS. SMITH: 35.
10 Q As the Fire Chief, was it your
11 responsibility to monitor whether there were any
12 incidents or problems within the Secaucus Fire
13 Department regarding discrimination, harassment
14 or bias?
15 A It was my responsibility to monitor any
16 complaints that I received information on. If I
17 didn't receive information on a complaint, I
18 couldn't handle it. And that was all
19 complaints, not specifically just bias, et
20 cetera.
21 Q Were there any mechanisms in place
22 to prevent bias or discrimination within the
23 Secaucus Fire Department?
24 A I really don't understand what you are
25 asking me, since there was no policy at that
00255
1 time.
2 Q Okay. So there was no policy in
3 place; is that correct?
4 A Not specifically for bias within the
5 Department, no.
6 Q No policy regarding bias?
7 A No.
8 Q No policy regarding
9 discrimination?
10 A No.
11 Q No policy regarding harassment?
12 A No.
13 Q Did you have any monitoring system
14 in place to determine whether there were any
15 issues relating to bias, discrimination or
16 harassment within the Secaucus Fire Department?
17 A If I understand your question correctly,
18 if somebody had a complaint, they would go to
19 either the officer or, if the officer was
20 involved, they would go to the chief officer
21 with the complaint.
22 Q How would they know how to do
23 that?
24 A Basically common sense, I would say.
25 There was no written policy dealing with that.
00256
1 Q That actually wasn't my question.
2 My question was: Was there anything in place
3 within the Secaucus Fire Department to monitor
4 whether there was any activity related to bias,
5 discrimination or harassment?
6 A For lack of understanding, I will have to
7 say no.
8 Q I want you to understand the
9 question. Maybe I can do so by way of a -- an
10 example. If in a particular firehouse the
11 firefighters were standing out front and yelling
12 racial epithets at any minority who passed by,
13 did the Fire Department have anything in place
14 to monitor that kind of activity, identify it
15 and ensure it didn't happen again? I'm giving
16 you an example so you can better understand my
17 earlier question.
18 A I understand your example. There would
19 be a complaint brought to either the company
20 officer or the Chief officer.
21 Q But the Fire Department wasn't
22 doing anything to determine whether that kind of
23 thing was happening?
24 A No, we weren't walking around every week
25 and saying, "Did this happen? Did that happen?"
00257
1 No.
2 Q The Fire Department wasn't doing
3 anything to make sure that kind of thing wasn't
4 happening?
5 A No.
6 MS. SMITH: 43.
7 Q As one of the three chiefs, when
8 you're the Fire Chief, you can determine whether
9 or not a firefighter who has been brought up on
10 charges stays or leaves the Fire Department; is
11 that correct?
12 A Once again, we cannot remove someone. We
13 can recommend expulsion. And once again, that
14 goes to the Town Council; they have the ultimate
15 say on it.
16 Q You mean taking your opinion into
17 account?
18 A Yes.
19 MR. MULLIN: 44.
20 MS. SMITH: 44.
21 Q If an individual firefighter is
22 brought up on charges within the company and the
23 company recommends discharge, that firefighter
24 has the right to appeal to the three chiefs,
25 correct?
00258
1 A Correct.
2 Q The three chiefs can decide to
3 uphold the discharge or termination of the
4 firefighter, right?
5 A Correct.
6 Q If the three chiefs decide to
7 uphold that termination, then the firefighter
8 can appeal to the Mayor and Council, correct?
9 A He can appeal it to the Mayor and
10 Council. And at the same time the three chiefs
11 are forwarding the initial complaint to the
12 Mayor and Council, so they have it when he makes
13 an appeal.
14 Q If the person decides not to
15 appeal to the Mayor and Council and the three
16 chiefs uphold the termination, then in that
17 situation you would be -- you would be finding
18 for a termination?
19 A You would be finding for it, but it would
20 still be up to the Mayor and Council to actually
21 uphold it.
22 Q My question is: If the
23 firefighter chooses not to appeal to the Mayor
24 and Council, does the Mayor and Council still
25 have to sanction the termination; or does the
00259
1 termination end when the three chiefs deny the
2 appeal?
3 A They would still have to sanction the
4 termination.
5 Q So in all situations the
6 termination ends up, in some capacity, before
7 the Mayor and Council?
8 A Correct.
9 MS. SMITH: 49.
10 MR. MULLIN: Yeah.
11 Q So if something doesn't come up
12 during the probationary period and the person is
13 now a full-fledged firefighter within the
14 Secaucus Fire Department, there is nothing that
15 you can do to prevent that person from fighting
16 fires, you, as Chief?
17 A You can keep putting them on restricted
18 duty. You can put them on suspensions. But you
19 cannot kick them out of the department.
20 Q Who makes decisions regarding
21 restricted duty and suspensions?
22 A The company officers, the Chief officers,
23 if they do something at a scene.
24 Q The Chief officers would include
25 who?
00260
1 A The three chiefs.
2 Q So the three chiefs are involved
3 in making decisions regarding restricted duty
4 and suspensions?
5 A Yes, correct.
6 Q During the time that you were the
7 Fire Chief were you ever involved in putting
8 someone on -- let me backtrack. Restricted duty
9 and suspensions are two different things?
10 A Yes.
11 Q What is restricted duty?
12 A Restricted duty is you may stop someone
13 from going inside a fire building, but you
14 wouldn't stop them from being on a scene.
15 Q And a suspension means what?
16 A It means whatever the time frame is, the
17 suspension is they are not supposed to
18 be anywhere near either a scene or the
19 firehouse.
20 Q During the time that you were the
21 Fire Chief were you ever involved in putting
22 someone on restricted duty?
23 A I'm trying to think.
24 Q Take all the time you need.
25 A Are you referring to when I was top
00261
1 chief?
2 Q Let's start with top chief.
3 A No.
4 Q Okay. And when you were battalion
5 chief were you involved in putting anyone on
6 restricted duty?
7 A No.
8 Q Did I already ask you when you
9 were the full Fire Chief whether you were
10 involved in any restricted duty?
11 A Yes.
12 Q And you said no?
13 A Right.
14 Q When you were the full Fire Chief
15 were you involved in putting anyone on
16 suspension?
17 A To the best of my recollection, no.
18 Q What about when you were the
19 deputy chief?
20 A To the best of my recollection, no.
21 Q And when you were the battalion
22 chief?
23 A To the best of my recollection, no.
24 Q Were you --
25 MS. SMITH: Fifty-five.
00262
1 Q Were you, at any time since the
2 year 2000, made aware of any problems of any
3 nature with Engine Company Number 2?
4 A Yes.
5 Q And what problems were those?
6 A That was the morning after the major one,
7 the morning after the 25th. The week prior, I
8 don't remember offhand, my deputy had informed
9 me that one of the residents in the area had
10 complained to the firehouse about a problem with
11 the firehouse up in the North End and that he
12 handled the situation.
13 Q Who was that deputy?
14 A Raymond Cieciuch.
15 Q Do you know who the resident was?
16 A No.
17 Q Do you know what the problem was?
18 A Supposedly a complaint of them throwing
19 something from the second floor window onto the
20 rear porch.
21 Q You don't know what they allegedly
22 threw?
23 A Supposedly a condom.
24 Q And what did your deputy chief say
25 about how he had handled that problem?
00263
1 A That he had gone with another member of
2 the company up to the second floor window in
3 question and determined that it would have taken
4 a southwest wind at about 5 miles an hour and
5 throwing it out and it making a massive
6 right-hand turn because there is no direct view
7 of the rear deck from that window. There were
8 too many obstructions.
9 Q Who was the member of the company?
10 A I don't know.
11 Q Was it your understanding that
12 they actually physically threw an object from
13 the building in an attempt to replicate the
14 complaint that had been made?
15 A No, actually, was my understanding that
16 they just looked out the window and, because of
17 an overhang and, I believe, trees in the area,
18 it was an impossibility.
19 Q Was there a report about this?
20 A Not to my knowledge.
21 Q Your deputy chief didn't fill out
22 a report?
23 A No.
24 Q Nothing in writing?
25 A No.
00264
1 Q The hierarchy of the Fire
2 Department in Secaucus is the Fire Chief is at
3 the top, the deputy chief is just below the Fire
4 Chief, the battalion chief is just below the
5 deputy chief, the captains are just below the
6 battalion chief; is that correct?
7 A Correct.
8 Q And the lieutenant is just below
9 the captain; is that correct?
10 A Correct.
11 Q Have I missed any positions?
12 A Two companies have second lieutenants.
13 Q Which would be just below what?
14 A First lieutenants.
15 Q But that's the correct structure
16 starting from the top and working down?
17 A Correct.
18 MS. SMITH: 64.
19 MR. MULLIN: Yep.
20 Q Okay. How was this letter
21 delivered to you?
22 A A meeting was held -- might have been
23 that night with myself, Deputy Chief Cieciuch
24 and Battalion Chief Parisi.
25 Q Who arranged for the meeting?
00265
1 A The officers of Rescue 1 requested it.
2 Q So it was a meeting with yourself,
3 the deputy chief, the battalion chief and all of
4 the individuals who signed the second page of
5 Walters-1?
6 MS. SMITH: That's the blowup of
7 the exhibit we just showed this witness.
8 MR. MULLIN: That's 17B, Your
9 Honor.
10 JUDGE CURRAN: Thank you.
11 MS. SMITH: Walters-1.
12 MR. MULLIN: Can we just show the
13 jury the front page of that, as well.
14 MS. SMITH: Plaintiff's Exhibit
15 134, Your Honor.
16 MR. MULLIN: Is that 17?
17 MS. SMITH: That's the front page.
18 MR. MULLIN: 17A.
19 MS. SMITH: Yeah, 17A.
20 MR. MULLIN: You want to start on
21 line 18?
22 MS. SMITH: Okay.
23 Q So it was a meeting with yourself,
24 the deputy chief, the battalion chief and all of
25 the individuals who signed the second page of
00266
1 Walters-1?
2 MR. MULLIN: Exhibit 17A.
3 A I believe they were all in attendance,
4 yes.
5 Q Did somebody contact you directly
6 to request the meeting?
7 A I received a phone call from Captain
8 Snyder.
9 Q Where was the meeting held?
10 A In the backroom of the Plank Road
11 restaurant.
12 Q How long did the meeting last?
13 A Approximately 45 minutes.
14 Q Did somebody preside over the
15 meeting?
16 A Captain Snyder did.
17 Q What did he say?
18 A In general, to the best of my
19 recollection, he just explained concerns to the
20 company and then presented us with the letter.
21 Q Was there any further discussion
22 about the presentation made by Captain Snyder?
23 A Discussion was made back and forth
24 dealing with the letter. As I remember, that's
25 all.
00267
1 Q Can you tell me about the
2 discussion to the best of your recollection?
3 A Just they were upset because there were
4 no criminal charges or no official, I'm
5 saying -- I'm going to -- saying I'm going to --
6 MR. MULLIN: Excuse me?
7 A -- or there was no official, I'm going to
8 say, criminal matter done. Nothing seemed to
9 be done. It was all investigation. Nothing had
10 been proven. They were pushing me and saying,
11 "You're innocent until proven guilty." And that
12 was generally just the general back and forth of
13 it.
14 Q That's everything you can recall?
15 A Yes.
16 Q Was there any discussion of the
17 events of April 25th, 2004?
18 A No.
19 Q Of the individuals listed on the
20 second page of Walters-1, I'm going to run
21 through and ask you whether each of them is
22 still a member of Engine Company Number 2.
23 Charles Snyder, Jr.?
24 A Correct.
25 Q Matthew Kickey?
00268
1 A I believe resigned.
2 Q Patrick Maxwell?
3 A I believe he is still a member.
4 Q Robert Cordes?
5 A Still a member.
6 Q Larry Sanzari?
7 A Sill a member.
8 Q Charles Mutschler?
9 A Still a member, as far as I know.
10 Q Daniel Snyder?
11 A I believe he is still a member.
12 Q Chris Snyder?
13 A Yes, he is still a member.
14 Q Kevin Kloepping.
15 A Yes, he is a member.
16 Q Charles Snyder, Sr.?
17 A Yes, still a member.
18 Q Walter Spodaryk?
19 A I believe he is still a member, yes.
20 Q Harry Backiel?
21 A I believe he resigned.
22 Q Richard Johnson?
23 A He is still a member.
24 Q Michael Pepe?
25 A Still a member.
00269
1 Q William Heitzmann?
2 A As far as I know he is still a member.
3 Q Joseph Schoendorf?
4 A Still a member.
5 Q George Schoenrock?
6 A Still a member.
7 Q Michael Sesty?
8 A Still a member.
9 Q Do you know whether any of the
10 individuals listed on page two of Walters-1 had
11 been promoted? And when I say that, I mean
12 attained a higher position than they have as
13 what's listed on this page.
14 MR. MULLIN: Then it says, "What
15 time period?"
16 "Since 2004."
17 The date of this deposition is
18 January 4th, 2007.
19 A I believe Richard Johnson became first
20 lieutenant. I believe Chris Snyder became
21 second lieutenant. Charles T. Snyder was just
22 elected to battalion chief.
23 Q When you say, "just," when was
24 that?
25 A That was the beginning of December, and
00270
1 he just took office January 1st.
2 Q Beginning of December 2006?
3 A Correct, that was the election. He took
4 office January 1st.
5 Q Okay. Anyone else?
6 A I believe that's all.
7 MS. SMITH: 81.
8 Q Were you present at the North End
9 Firehouse during the early morning hours of
10 April 25th, 2004?
11 A I did go up there, yes.
12 Q When did you go up there?
13 A I guess it was about 10:30, 11 in the
14 morning.
15 Q Let's step back for a moment. Did
16 you attend the Fire Department-related function
17 on the evening of April 24th, 2004?
18 A For the record, that was a company
19 function, not a Fire Department function. And
20 yes, I did.
21 Q How did you get to the party?
22 A I drove.
23 Q And where was the party held?
24 A Cliffside Park. Please don't ask me the
25 name of the place because I don't remember.
00271
1 Q That's okay. Do you know who paid
2 for the party?
3 A Engine Company Number 2, Rescue Company
4 Number 1.
5 Q Was there drinking at the party?
6 A Yes, there was.
7 Q Was there an open bar?
8 A I believe so.
9 Q Do you know how many people were
10 there -- were there approximately?
11 A Approximately 50 or so.
12 Q Do you recall anyone specifically
13 who was there?
14 A Myself and my wife. Deputy Chief
15 Cieciuch and his wife. Mayor Elwell and his
16 wife. The rest of the Council and their wives.
17 I'm going to say just about every member of
18 Engine 2, Rescue 1 that was on the list. There
19 may have been one or two that wasn't in
20 attendance. I can't remember offhand. That's
21 all I can recall.
22 Q Were you aware that there was a
23 bus that picked up the firefighters and their
24 dates from the North End Firehouse and
25 transported them to the party?
00272
1 A Yes.
2 Q Do you know who paid for the bus?
3 A I believe the company did.
4 MS. SMITH: Then, Your Honor, a
5 document was shown. It's now marked as
6 Plaintiff's Exhibit 332. And attached to it is
7 the Plaintiffs 117, which is the form for the
8 company function.
9 MR. MULLIN: Do you want --
10 Q The event on April 24th, 2004, do
11 you recall what time it was scheduled to end?
12 A No.
13 Q Did you leave early?
14 A Yes.
15 Q Have you had an opportunity to
16 review what's been marked Walters-2 for
17 Identification?
18 A Yes.
19 Q And have you ever seen the second
20 page of this document before?
21 A No.
22 Q No?
23 A No.
24 Q Is this the type of form that
25 needs to be filled out in order that an engine
00273
1 company can obtain a permit to consume alcohol
2 in a firehouse in 2004?
3 A Yes, but it's not a permit per se.
4 Q It's a request?
5 A Right, this is the form you would fill
6 out, yes.
7 Q And you only need to request a
8 permit if you are planning to drink in the
9 firehouse; is that correct?
10 A Correct.
11 Q You don't need a permit to go
12 off-site and drink, right?
13 A No, no.
14 Q Okay. So you went home at 10:15
15 in the evening of April 24th, 2004 and you drove
16 your car?
17 A Correct.
18 Q Where did you go?
19 A I went home.
20 Q At some point did you receive a
21 telephone call regarding events at the North End
22 Firehouse?
23 A No.
24 Q When did you first find out that
25 there had been an incident at the North End
00274
1 Firehouse in the early morning hours of
2 April 25th, 2004?
3 A Approximately somewhere between 7:30 and
4 8:30 the following morning.
5 Q How did you find out?
6 A I was down at the Panasonic parking lot
7 for the start of the March of Dimes walk-a-thon,
8 and Deputy Mayor Reilly and Police Chief
9 Corcoran pulled up and asked me about what
10 happened the night before. I thought they had
11 been referring to the water leak in one of the
12 hotels in Town where I had the building
13 inspector come down and close off two floors.
14 As I started explaining what my actions were on
15 that, that's when the Deputy Mayor Reilly said,
16 "No, we're talking about what happened up at the
17 North End." And that was the first I heard of
18 the incident.
19 Q Okay. And at that time did they
20 advise you of what had happened at the North End
21 Firehouse?
22 A As best they could, yes.
23 Q Can you describe for me your
24 general recollection of what they said or the
25 specifics, if you remember the specifics?
00275
1 A If I remember correctly, both were
2 speaking at the same time, so I can't really
3 contribute it to one person. But the gist of it
4 was that they come back from the party, got into
5 some type of shouting match. There was pounding
6 on the wall of the house next to them with the
7 neighbors. The police were called. And one of
8 the police officers removed a garbage bag full
9 of empty beer bottles or beer cans.
10 Q Is that everything they told you?
11 A That's most that I recall out of the
12 incident.
13 Q Did they tell you that the
14 allegations were being made that the
15 firefighters had been screaming homophobic,
16 antigay remarks?
17 A Yes, they did.
18 Q Did they tell you the specifics
19 about that?
20 A Just about general comments that would be
21 referred to as gay bashing; but what the actual
22 ones were, I don't remember.
23 Q Did they name any individual
24 firefighters they were aware of that had been
25 involved?
00276
1 A No.
2 Q What did you do in response to
3 having this conversation?
4 A I reached out and had my deputy chief and
5 battalion chief both respond down to my
6 location, and I discussed it with them.
7 The first order I came up with at the
8 time was to close the house.
9 The second was we would arrange for
10 starting sensitivity training.
11 It was at that time the Deputy Chief
12 Cieciuch said, "They are the ones they had the
13 problem with last week. Remember I told you we
14 had a problem up there that I had corrected?"
15 Q And to your understanding he was
16 referring to the allegation that firefighters
17 had thrown a condom over the fence onto the
18 property at 988 Schopmann Drive?
19 A That is correct, but I did not have the
20 address or further particulars at that time.
21 Q You just knew it to be the house
22 next door to the North End Firehouse parking
23 lot?
24 A Correct.
25 Q What's the next thing you did?
00277
1 Let me back up. Did you direct them to do
2 anything right at that moment?
3 MR. MULLIN: What line and page
4 are you on?
5 MS. SMITH: 90.
6 MR. MULLIN: What line?
7 MS. SMITH: 9.
8 A Just as I said, we were closing the house
9 until further notice with the exception of
10 emergency responses and that I would get in
11 touch with whoever was necessary in the Town to
12 set up sensitivity training.
13 Q Did you tell them to post a sign
14 at the North End Firehouse indicating that it
15 was closed for social purposes?
16 A No.
17 Q How were they to communicate that?
18 A We were going to go up there as soon as
19 the walk started. It was due to start in five
20 minutes.
21 Q You were going to go up there?
22 A Yes, and -- yes.
23 Q Then you were going to take care
24 of making sure that something was done to
25 communicate the message of closing the firehouse
00278
1 to the firefighters; is that correct?
2 A That's correct.
3 Q And was that -- what was
4 ultimately done?
5 A Ultimately -- I believe it was like
6 within ten minutes I got a message for the three
7 of us to report to Town Hall for a meeting with
8 Deputy Mayor Reilly, Mayor Elwell and the Police
9 Chief. They also reached out for officers of
10 Rescue.
11 Q So you have a conversation with
12 your deputy chief and the battalion chief and
13 then they leave; is that right?
14 A Correct.
15 Q And then you shortly thereafter
16 leave and go to the North End Firehouse?
17 A Not at that time. I didn't get a chance
18 to get up to it because I was called by -- I
19 believe it might have been my deputy and that we
20 were to be down at Town Hall for the other
21 meeting.
22 Q You were on your way to the North
23 End Firehouse, but you were sidetracked; is that
24 correct?
25 A Correct.
00279
1 Q Neither your deputy chief nor your
2 battalion chief were able to reach the North End
3 Firehouse at that time; is that correct?
4 A Correct.
5 Q Okay. You received a call from
6 your battalion chief telling you that the
7 meeting was going to take place with the Mayor
8 and other individuals?
9 A I don't remember if it was my deputy
10 chief or it was Deputy Mayor Reilly. Was either
11 Deputy Chief Cieciuch or Deputy Mayor Reilly.
12 Q Where was the meeting going to
13 be held?
14 A Town Hall, second floor.
15 Q Okay. I just want to confirm that
16 the people who were present at this meeting were
17 Mayor Elwell, Deputy Mayor Reilly, Police Chief
18 Corcoran, yourself, Deputy Chief Cieciuch,
19 Battalion Chief Parisi and Charles Snyder, Sr.;
20 is that correct?
21 A It was also Charles Snyder, Jr. and
22 Richard Johnson.
23 Q Why was Charles Snyder, Sr. there?
24 A I honestly don't know. I didn't call the
25 meeting, ma'am.
00280
1 Q So you don't know why Charles
2 Snyder --
3 MS. SMITH: It's supposed to
4 be Senior --
5 Q -- was there?
6 A He was there because he was the
7 captain --
8 MS. SMITH: I'm sorry.
9 Q You don't know why Charles Snyder,
10 Jr. was there?
11 A He was the there because he was the
12 contain of the company. Richard Johnson was
13 there because he was the second lieutenant of
14 the company.
15 Q But Charles Snyder, Sr. held no
16 position at that time, correct?
17 A Just an ex-captain. He may have been
18 there for moral support for his son. I don't
19 know.
20 Q And you don't know who called the
21 meeting; is that what you said?
22 A It was either the Mayor or the Deputy
23 Mayor or the Police Chief, since it was in Town
24 Hall.
25 Q How long did you meet for?
00281
1 A I believe it was about half-an-hour, 45
2 minutes.
3 Q Who ran the meeting?
4 A The Mayor and the Deputy Mayor.
5 Q Were you aware that Charles
6 Snyder, Sr. refused to leave the Fire Department
7 when asked by the police and said he was on-duty
8 that night?
9 A No.
10 Q Were you aware that the
11 firefighters and their companions refused to
12 leave the Fire Department when asked by the
13 police?
14 A No.
15 Q None of this ever came to your
16 knowledge?
17 A I knew there was a discussion going on
18 outside and they didn't want to leave until
19 everything got cleared up.
20 Q Who told you that?
21 A That was mentioned at the meeting that
22 morning.
23 Q You said you did know about the
24 empty beer containers being taken out of the
25 firehouse, right?
00282
1 A That I heard earlier, yes.
2 Q Did you follow up on that?
3 A No.
4 Q Did anyone?
5 A No.
6 Q Going back to the meeting, you
7 indicated that Mayor Elwell gave an informal
8 description of what had taken place earlier that
9 morning at the North End Firehouse; is that
10 correct?
11 A No.
12 Q I'm sorry.
13 A You asked what -- what was the purpose of
14 the meeting. And I said I believe Mayor Elwell
15 was attempting in an informal setting to find
16 out what events took place the night before. So
17 he was not telling everyone what happened; he
18 was trying to get to the bottom of it.
19 Q So he was --
20 MR. MULLIN: Yeah.
21 Q So he was not providing
22 information; he was requesting information?
23 A Correct.
24 Q And who was providing the
25 information?
00283
1 A The members of Rescue that were present.
2 Q That would be Charles Snyder, Sr.
3 and Charles Snyder, Jr.?
4 A And Richard Johnson.
5 Q Okay. What did Charles Snyder,
6 Sr. say about what happened at the North End
7 Firehouse earlier that morning?
8 A The only thing I remember anybody saying,
9 because everyone was talking at one time, was
10 basically it was a shouting match that took
11 place for ten, 15 seconds and it was over.
12 Q You don't recall anything more
13 specific said by anyone at that meeting?
14 A Not about the incidents taking place the
15 night before.
16 Q Did anyone mention the fact that
17 the shouting match involved antigay remarks?
18 A It may have. I don't remember that.
19 Q Did anyone use a word like
20 "faggots" --
21 MS. SMITH: Sorry.
22 Q -- "cock-sucker,"
23 "sword-swallowers," anything along those lines?
24 A Not in reference to the night before, no.
25 Q Well, in reference to what, then?
00284
1 A There was someone that made a comment --
2 I believe it was Chuck, Sr. made a comment of,
3 "You're going to believe those fucking faggots
4 over me?" I believe that was the comment that
5 was made.
6 Q Who was it directed to?
7 A That was kind of made to everyone in the
8 room. Since people were just trying to get
9 information and were re-asking the same
10 questions and he was apparently -- and I don't
11 want to get inside his head because I really
12 can't. But I would believe he was thinking that
13 no one was believing him at the time, so that it
14 was just said to everyone in general.
15 Q Okay. Were you surprised by his
16 remark?
17 A I can't honestly -- I honestly can't say
18 one way or another.
19 Q Were you shocked?
20 A I was kind of shocked, yes; but I don't
21 let things surprise me too much, honestly.
22 Q Did it surprise you that he was
23 openly making an antigay statement when the
24 incident involved alleged antigay statements
25 made by firefighters?
00285
1 A No, because I didn't take it as being an
2 antigay statement personally.
3 Q Why not?
4 A Because it was more heat of the moment
5 statement than directed towards any specific
6 person.
7 Q So who do you think he was
8 referring to when he said, "those fucking
9 faggots"?
10 A Obviously, I would have to say I believe
11 he was directing it towards -- he was referring
12 to your clients.
13 Q Did you know at that time that my
14 clients were homosexual men?
15 A No.
16 Q Did you ever come to find that
17 out?
18 A I have found it out since then, but
19 that's from reading the papers like everyone
20 else.
21 Q Okay. So we're clear, he was
22 referring to my clients when he said that?
23 A I would think of it as a
24 heat-of-the-moment thing, since it was the only
25 reference of that type made.
00286
1 Q But you did believe him to
2 be referring to my clients; is that correct?
3 A Correct.
4 MS. SMITH: Whereupon a document
5 was shown to the witness. It's currently marked
6 as P-333, Your Honor.
7 JUDGE CURRAN: Thank you.
8 Q Have you had an opportunity to
9 be -- to review what's currently marked as
10 Plaintiff's Exhibit 333 for Identification?
11 A Just now, yes.
12 Q Is this the first time you've seen
13 this document?
14 A No.
15 Q When did you see it before?
16 A On April 28, '04, when I gave it.
17 Q But not since then?
18 A No.
19 Q Okay. At the bottom of the page,
20 after the last answer there is text that's part
21 of the document. Could you read that for me?
22 A Quote, I have read each page of the
23 statement consisting of two pages. Knowing that
24 any false statements made herein are punishable
25 by law, I certify that the facts contained
00287
1 herein are true and correct.
2 Q Did you sign this document under
3 this statement?
4 A Yes, I did.
5 Q Did you sign it again on the
6 second page, when the statement is duplicated?
7 A Yes, I did.
8 Q Do you recall giving this
9 statement to the police?
10 A Yes, I do.
11 Q Were you telling the truth?
12 A Yes, I was.
13 Q Okay. On the second page of the
14 statement about halfway down Sergeant Reinke
15 asks you -- and I will quote -- Did anyone stand
16 up and say, "You are going to believe those
17 cock-suckers over me?" at the meeting?
18 And the answer is, quote, Not in my
19 presence, closed quote.
20 Is that accurate?
21 A Correct.
22 Q Is that the question you were
23 asked?
24 A Yes.
25 Q Is that the answer you gave?
00288
1 A Yes.
2 MS. SMITH: Whereupon another
3 formal statement is received and marked
4 Walters-4. It's currently, Your Honor,
5 Plaintiff's Exhibit 334.
6 JUDGE CURRAN: Thank you.
7 Q Have you had an opportunity to
8 review what's currently P-334 for
9 Identification?
10 A Yes.
11 Q Looking for a minute at
12 Walters-3 --
13 MS. SMITH: Now Plaintiffs 334.
14 Q -- for Identification, did you
15 give that statement on April 28th of 2004?
16 A Appears to be, yes.
17 Q And it indicates on the bottom
18 underneath your signature for date and time of
19 signature that it was at 3:43 p.m. that you
20 signed it; is that correct?
21 A Yes.
22 Q Okay. And then, for that
23 document, Walters-4, if you turn to the last
24 page, is that your signature at the bottom?
25 A Correct.
00289
1 Q And underneath it's dated 4/28/04;
2 is that correct?
3 A Correct.
4 Q And the time was 4:47 p.m.; is
5 that correct?
6 A That's correct.
7 Q So it's just over an hour later on
8 the same day you gave a second statement; is
9 that correct?
10 A Correct.
11 Q And the form on which the
12 statement is taken is exactly the same as for
13 Walters-4 and Walters-3 in terms of what is
14 actually printed on the form?
15 The language that I had read into the
16 record earlier, quote, I have read each page of
17 this statement, and so forth is contained on all
18 three pages of Walters-4; is that correct?
19 A That's correct.
20 Q And you signed all three pages,
21 correct?
22 A Correct.
23 MR. PARIS: Excuse me, Your Honor.
24 Can I ask counsel to read the transcript
25 verbatim, please?
00290
1 MS. SMITH: Do you have a
2 correction.
3 MR. MULLIN: What is the
4 correction?
5 MR. PARIS: There were a number of
6 them here and there, but I --
7 MR. MULLIN: Let's have a specific
8 correction, Your Honor.
9 JUDGE CURRAN: You are sitting up
10 here --
11 MR. PARIS: In deference to the
12 Court, I would ask it be verbatim.
13 JUDGE CURRAN: I have been
14 following fairly closely, and there has been a
15 word or two that I did not feel was in any way
16 significant but --
17 MR. PARIS: I agree, Your Honor.
18 JUDGE CURRAN: That request,
19 Mr. Paris --
20 MS. SMITH: If you see me miss a
21 word, let me know. I am not doing it
22 intentionally.
23 MR. PARIS: Sure.
24 Q Did the police call you back to
25 give another statement?
00291
1 A Yes, they did.
2 Q Describe for me what happened
3 after you gave the statement that's contained on
4 Walters-3. Did you leave the Police Department?
5 A Yes.
6 Q And you received a call on your
7 cell phone?
8 A No, on my fire phone -- on my fire radio.
9 Q From who?
10 A The police desk, which does our
11 dispatching, to return to police headquarters to
12 speak to the detectives again.
13 Q Okay. And when you returned did
14 they explain to you why they called you back?
15 A To the best of my recollection, it was
16 just more questions.
17 Q And this statement on the first
18 page about halfway down indicates that Chuck
19 Snyder, Jr. told you that the neighbor yelled at
20 us to be quiet and that, quote, we, closed
21 quote, yelled back, closed quote; is that
22 correct?
23 A That's what it says, yes.
24 Q Is that an accurate representation
25 of what you said when you met with Sergeant
00292
1 Reinke on April 28th of 2004?
2 A I would have to say it is, since it's in
3 front of me. It's signed by me. I honestly
4 don't remember the exact conversation. It was
5 three years ago.
6 Q Do you know what Chuck Snyder, Jr.
7 told you that, quote, we yelled back, closed
8 quote?
9 MR. MULLIN: Read the question
10 again.
11 Q Do you know when Chuck Snyder, Jr.
12 told you that, quote, we yelled back, closed
13 quote?
14 A If you look at two questions above it, it
15 says it had taken place in the caucus room when
16 we were in Town Hall.
17 Q So that was part of the discussion
18 in the Town Hall caucus room?
19 A Correct.
20 MS. SMITH: Whereupon a formal
21 statement is received and marked for
22 Identification as Walters-5. Your Honor,
23 currently it's P-335.
24 Q Have you had the opportunity to
25 review for the record what's marked as Walters-5
00293
1 for Identification?
2 A Once again, just now, yes.
3 Q Did you review it at the time you
4 gave the statement on April 29th, 2004?
5 A Yes, I did.
6 Q And that would be true, then, for
7 Walters-4 also, correct?
8 A Correct.
9 Q This statement was given on
10 April 29th, 2004; is that correct?
11 A That's what this says, yes.
12 Q This is the third time that you
13 have gone back to the police, correct?
14 A Correct.
15 Q Did they call you, or did you
16 return on your own initiative?
17 A Once again, they called me.
18 Q Okay. Where were you when they
19 called you?
20 A I don't know where I was when I got the
21 call.
22 MS. SMITH: I don't --
23 MR. MULLIN: Was.
24 Q Was it Sergeant Reinke asking you
25 to return?
00294
1 A It was either Sergeant Reinke or it was
2 someone else within the Detective Bureau who
3 called me.
4 Q Walters-5 is a two-page document;
5 is that correct?
6 A Correct.
7 Q And each page contains the same
8 language that you had read into the record
9 earlier, quote, I have read each paper of this
10 statement consisting of two pages, closed quote,
11 and so forth; is that correct?
12 A Correct.
13 Q And you were telling the truth
14 when you gave this statement; is that correct?
15 A To the best of my knowledge, yes.
16 Q At this time did Sergeant Reinke
17 indicate to you why he had called you in for a
18 third statement?
19 A Further questions.
20 Q Did he indicate to you that he had
21 any further information which required you --
22 him to ask you additional questions?
23 A No.
24 Q Did he indicate that the -- that
25 the second time he called you in?
00295
1 A No.
2 Q Okay. On the first page he asks
3 you the question, quote, Did someone at the
4 meeting say, quote, You're going to believe
5 those cock-suckers over me, question mark,
6 closed quote?
7 And you answer, quote, I heard
8 something to that effect; but the exact quote I
9 cannot say, closed quote. Is that accurate?
10 A It says it there, so it was.
11 Q You were telling the truth when
12 you gave that third statement; is that correct?
13 A Correct.
14 Q You were telling the truth when
15 you gave the second statement, correct?
16 A Correct.
17 Q The second statement says that you
18 did not hear anyone say, "Are you going to
19 believe those cock-suckers over me"; is that
20 correct?
21 A Talking about Walters-4?
22 Q Walters-3, on the second page,
23 halfway down.
24 A I believe I must have, since it's there.
25 Q So the record is clear, on
00296
1 Walters-3 you gave a statement to the police
2 that you did not hear anyone say, quote, You're
3 going to believe those cock-suckers over me,
4 closed quote, at the meeting which was held at
5 the Town Hall on April 25th, 2004; is that
6 correct?
7 A I have lost track of what the question
8 was.
9 Q It's confusing because there is
10 three different statements. In Walters-3 you
11 stated to the police that no one said, quote,
12 You're going to believe those cock-suckers over
13 me, closed quote, during the meeting which took
14 place at the Town Hall on April 25th, 2004; is
15 that correct?
16 A That was my recollection at the time,
17 correct.
18 Q Then, in Walters-5, which is your
19 third statement to the police, you told them
20 that you did hear someone say, quote, You're
21 going to believe those cock-suckers over me,
22 closed quote, at the meeting at the Town Hall on
23 April 25th, 2004; is that correct?
24 A Correct.
25 Q Okay. Were you telling the truth
00297
1 both times?
2 A I was answering to the best of my
3 recollection at the time, yes.
4 Q And you gave your first two
5 statements on the 28th and your third statement
6 on the 29th; is that correct?
7 A Correct.
8 Q And you didn't volunteer this
9 information to the police; they called you in,
10 correct?
11 A Correct.
12 Q Can you tell me everything that
13 you did to investigate the incidents which took
14 place during the early morning hours of
15 April 25th, 2004?
16 A I had very informal conversations with
17 Captain Chuck Snyder and Lieutenant Richard
18 Johnson.
19 Q When did you have those
20 conversations with them?
21 A Starting on the morning of the 25th. And
22 as I said, they were informal, so any time I saw
23 them.
24 Q How long would you say you spoke
25 to each one of them overall?
00298
1 A I would say over an hour-and-a-half with
2 each one.
3 Q So Chuck Snyder and Richard
4 Johnson?
5 A Correct.
6 Q Chuck Snyder, Sr. or Jr.?
7 A Junior.
8 Q Did you talk to Chuck Snyder, Sr.?
9 A No.
10 Q And when you spoke with Chuck
11 Snyder, Jr., what did he tell you?
12 A Basically, as -- as I have already said,
13 that it was just a general shouting match that
14 didn't take much time.
15 Q Did he admit that he was yelling
16 in the parking lot during the early morning
17 hours of April 25th, 2004?
18 A Yes, I believe he was one of the yellers.
19 Q Did he indicate who else was
20 yelling in the parking lot that morning?
21 A No.
22 Q Did he tell you what he was
23 yelling?
24 A No.
25 Q Did you ask him?
00299
1 A No.
2 Q Did you ask him whether he said
3 anything that was antigay or homophobic?
4 A No.
5 Q Was there anything else that Chuck
6 Snyder, Jr. said to you when you spoke with him?
7 A No.
8 Q What about Richard Johnson; what
9 did he say about the incidents in question?
10 A He just had overheard it because he was
11 helping people get off the bus. And he was
12 inside the firehouse when it started. And by
13 the time he got out it was over.
14 Q Was he able to identify who was
15 standing in the parking lot yelling?
16 A I didn't ask him specifically who was
17 there.
18 Q Did you ask either one of these
19 individuals anything about what happened that
20 night?
21 A No.
22 Q Not a single thing?
23 A No, other than, as I said, an informal
24 question of what took place.
25 Q Was there any -- was there ever
00300
1 any kind of an internal administrative
2 investigation done within the Fire Department?
3 A We were waiting until the police
4 investigation was completed. And to my
5 knowledge it still hasn't been completed because
6 we were never notified by them of the end of the
7 completion.
8 Q So the answer to that question is
9 no?
10 A Correct, it would have been an
11 administrative investigation.
12 Q Were there any outside
13 investigators brought in besides the police to
14 do an investigation within the Fire Department?
15 A Other than the State Attorney General's
16 Office being notified, not that I know of.
17 Q Did you ever request that somebody
18 come in and do an investigation?
19 A No, because there was a police
20 investigation going on at the time and I didn't
21 want to hinder it.
22 Q Who told you there was a police
23 investigation going on?
24 A The Police Department. I have three
25 forms in front of me that tell me that.
00301
1 Q Who told you that it was open
2 still?
3 A They never told us that it was closed.
4 Q So you assumed it's open?
5 A Correct, because when we had our initial
6 meeting, we were told that as soon as the police
7 investigation was completed we would get a copy
8 of the investigation, so we could begin our
9 investigation.
10 Q Did they tell you to wait on your
11 own investigation?
12 A We were told by the Police Chief that we
13 would not get a copy of any police report until
14 the investigation was complete, at which point
15 we could begin our investigation.
16 Q That doesn't answer my question.
17 Did the Police Department tell you not to do
18 your own investigation until after the police
19 investigation was complete?
20 A No.
21 Q So you have told me every single
22 thing that you did to investigate this matter;
23 is that correct?
24 A To the best of my knowledge, unless you
25 have something hidden there that I don't know
00302
1 about.
2 Q Can you tell me everything you did
3 to remediate this matter?
4 A Can you rephrase the question?
5 Q Tell me everything you did to
6 correct the situation, to make it right.
7 A I closed the house temporarily. Ordered
8 sensitivity training. Sat down with the Town
9 Administrator. That's the EEO officer. The
10 Town ended up making a final decision on
11 everything, even though it was in conjunction
12 with the Fire Department. It was still
13 basically a combination effort, but it was the
14 Town making a final decision.
15 Q What was the Town's final
16 decision?
17 A There was really no reason to have the
18 house closed because there was nothing other
19 than an investigation going on.
20 Q So when you say the Town -- quote,
21 the Town's final decision, closed quote, you
22 mean only with respect to opening up of the
23 house for social purposes; is that correct?
24 A That's correct.
25 MR. MULLIN: 123.
00303
1 Q And when the -- and when was the
2 house reopened?
3 A I don't remember the exact date. I
4 believe it was maybe two weeks afterward, a week
5 after or week-and-a-half.
6 Q You met with Anthony Iacono after
7 he sent you the letter of April 30th, 2004, is
8 that correct, the letter that's been marked
9 Walters-6?
10 A Might have been the same day. I don't
11 remember.
12 MR. PARIS: Excuse me, can you
13 just bring me up-to-date as to where you are?
14 JUDGE CURRAN: I'm sorry?
15 MR. PARIS: Your Honor, just get
16 caught up-to-date.
17 MS. SMITH: We just finished 123
18 at 24.
19 MR. MULLIN: I think we are at
20 129.
21 JUDGE CURRAN: 129 and 138, I
22 believe.
23 Q Was anyone within the Fire
24 Department disciplined as a result of the
25 incidents which took place on April 25th, 2004
00304
1 at the North End Firehouse?
2 A To the best of my knowledge the only ones
3 disciplined were the entire company, and that
4 was during the shutout period. But no one
5 specifically for the incident, no.
6 Q Nothing beyond the firehouse being
7 closed for social purposes for a
8 week-and-a-half?
9 A Correct.
10 Q There were never any
11 administrative hearings conducted by the Fire
12 Department; is that correct?
13 A That's correct. I answered that before.
14 MS. SMITH: 138.
15 Q This complaint that was received
16 about the condom, when did you become aware of
17 that complaint?
18 A It was sometime during the week prior to
19 the 24th; but as I stated, I wasn't aware of
20 what neighbors he was referring to or the other
21 particulars of it. He handled the situation.
22 Q Did you become aware of the
23 complaint prior to the 24th?
24 A Just that there was a complaint from a
25 neighbor and that he had handled it. That was
00305
1 it.
2 Q When you say, "he," you're
3 referring to Raymond Cieciuch?
4 A Right.
5 Q You have told us before about
6 Mr. Cieciuch going up to the firehouse, going up
7 to the second floor window and making a
8 determination as to whether or not the
9 allegation was physically possible, correct?
10 A Correct.
11 Q Did deputy Cieciuch tell you
12 anything else about the complaint that was made
13 or what he had done about the complaint?
14 A No.
15 MS. SMITH: That's it, Your Honor.
16 Thank you.
17 JUDGE CURRAN: May I see counsel
18 at sidebar, please.
19 (Whereupon, the following sidebar
20 discussion is held.)
21 JUDGE CURRAN: What about
22 scheduling for tomorrow? Any objection to
23 letting the jury go now?
24 MR. MULLIN: No.
25 MR. PARIS: No, if you want to let
00306
1 them go and then we can talk. It's up to Your
2 Honor.
3 JUDGE CURRAN: Is that okay?
4 MR. MULLIN: Sure.
5 JUDGE CURRAN: Okay.
6 (Whereupon, sidebar discussion is
7 concluded.)
8 JUDGE CURRAN: Ladies and
9 Gentlemen -- Mr. Mullin, if you would be kind
10 enough to move the easel.
11 MR. MULLIN: Absolutely.
12 JUDGE CURRAN: Thank you.
13 We will excuse you for the day.
14 I'm sure those of you who are freezing up there
15 would be happy to hear that.
16 Again, I will remind you not to
17 discuss the case among yourselves. Please do
18 not discuss the case with anyone else. And we
19 ask that you return tomorrow morning at 9:30.
20 Thank you.
21 JUDGE CURRAN: Off the record.
22 (Whereupon, the jury is excused.)
23 (Whereupon, a brief recess is
24 taken.)
25 JUDGE CURRAN: We are back on the
00307
1 record. As to the witnesses for tomorrow.
2 MS. SMITH: We have much shorter
3 readings, Your Honor, maybe 15 minutes each.
4 And we are going to move our exhibits in and
5 rest.
6 MR. MULLIN: We have to rest
7 subject to completion of that stipulation, but I
8 don't mind. We still have to --
9 MR. PARIS: You said you were
10 going to prepare it.
11 MR. MULLIN: You want me to
12 prepare the form to fill out?
13 MR. PARIS: Form?
14 MR. MULLIN: This is a stipulation
15 about the positions --
16 JUDGE CURRAN: Right.
17 MR. MULLIN: -- that firefighters
18 in the North End Firehouse held, when they held
19 them and then --
20 MR. PARIS: We will get that to
21 you.
22 MR. MULLIN: I don't have to hold
23 up resting, stop the trial because I think they
24 are working on it.
25 MR. PARIS: No, that's fine.
00308
1 MR. MULLIN: So, Your Honor, we
2 can rest fairly quickly tomorrow.
3 JUDGE CURRAN: Are there any
4 exhibits on which you'll agree that they can be
5 moved into Evidence?
6 MR. BEVERE: I think so.
7 MR. MULLIN: I think there are a
8 lot.
9 MR. PARIS: Do you have a list --
10 do you have a list of what you are going to
11 move?
12 MR. MULLIN: I'm working on it. I
13 got as far as my P-262. I hope to finish it
14 tonight.
15 MR. PARIS: Does it start at P-1
16 and go as far as P-262?
17 MR. MULLIN: Much is omitted.
18 Your Honor, I will send an e-mail
19 to counsel tonight of what I hope to move in.
20 JUDGE CURRAN: Okay.
21 MR. MULLIN: I think we have a lot
22 of agreement. I will agree on a lot of their
23 exhibits. I will come in and make it easy.
24 MR. PARIS: I assume if they're
25 moving in documents that contain hearsay and we
00309
1 move documents or seek to move documents that
2 include hearsay, I'm sure that --
3 JUDGE CURRAN: I guess we will
4 hear the arguments as to whether or not it is
5 hearsay. But I try very carefully to, if I --
6 you know, make a decision that's fair to one, I
7 try to make it fair to both sides, but --
8 MR. PARIS: Well, we may
9 stipulate. All that I'm saying is I have a
10 feeling it will not be a problem.
11 MR. MULLIN: It's my feeling, as
12 well. Anything else?
13 MS. SMITH: Then we have
14 Dr. Goldwaser.
15 JUDGE CURRAN: What time is
16 Dr. Goldwaser coming?
17 MR. BEVERE: I was going to have
18 him here at 9. I was going to have him here at
19 10.
20 JUDGE CURRAN: I think that's a
21 little early, if you want to do the readings. I
22 think everybody is well intentioned, but I think
23 it might take a little time to argue the
24 exhibits.
25 MR. BEVERE: I can have him at 11.
00310
1 MS. SMITH: I have no objection.
2 Whenever is convenient for the doctor is fine
3 with me.
4 JUDGE CURRAN: I want to make sure
5 we have enough time end of the day. Do you
6 think 11 is enough time, if we start at 11?
7 MR. BEVERE: I think so. I think
8 11 is fine.
9 MR. PARIS: Do you think 11 or
10 10:30?
11 MR. BEVERE: I think 11 is fine.
12 JUDGE CURRAN: Okay. Anything
13 else? Otherwise, we will go off the record, if
14 you don't mind.
15 MR. PARIS: Fine.
16 JUDGE CURRAN: Thank you. Off the
17 record.
18 (Whereupon, the proceeding is
19 concluded at 4:10 p.m.)
20
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00311
1 C E R T I F I C A T E
2
3 I, TRACEY R. SZCZUBELEK, a Certified Court
4 Reporter and Notary Public of the State of New
5 Jersey, do hereby certify that the foregoing is
6 a true and accurate transcript of the
7 stenographic notes as taken by and before me, on
8 the date and place hereinbefore set forth.
9
10
11
12
13
14
15
16
17
18 ________________________________
19 TRACEY R. SZCZUBELEK, C.C.R.
20 LICENSE NO. XIO1983
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